MAKENA SURF SECOND
RESTATED DECLARATION OF CONDOMINIUM PROPERTY REGIME
TABLE OF CONTENTS
Page
1. Description of land. . . . . . . . . . . . . . . . . . ............................... . . . 3
2. Name of Condominium Property Regime ............ . . . . . . . . . . . . 8
3. Description of Buildings ............................... . . . . . . . . . . . . . . . . . . 9
4. location and Description of Apartments ....................... . . . . . . .
. . . 11
5. Description of Common Elements ........................ . . . . . . . . . . .
. . . 18
6. Change In Use of Common Elements..................... . . .. . . . . . . .
. . . 20
7. Control Over Public Common Elements................... . . . . . . . . .
. . . 21
8. Limited Common Elements; Description; Fees and Charges
for Limited
Common Elements .......................... . . . . . . . . . . . . . . 21
9. Percentages of Undivided Interest........................... . . . . . . . . . .
. . . . 21
10. Statement As To Use Of Apartments ..................... . . . . . . . . .
. . . . 25
10A.Certain Work Prohibited . . ............................. . . . . . . . . . . .
.. . . . 25
11. Service of Process . . . ................................... . . . . . . . . . . .
. . . . . . 26
12. Reconstruction of Improvements . .................. . . . . . . . . .
. . . . . 26
13. Amendments To Declaration . . . . . . . . . . . . . .
. . . . 26
14. Makena Surf By-Laws . . . . . . . . . . . . . . . . .
. . . . 27
15. Formation of Association Of Apartment Owners . . . .
. . . . . 27
16. Grant of Easement Over Common Elements. . . . . . . .
. . . . .28
(i)
17. Inconsistency of Provisions............................ . . . . . . . . . . . .
. . . . . 28
18. Association Registration.............................. . . . . . . . . . . . . . .
. . . . .28
19. Waiver of Use of Common Elements.................. . . . . . . . . . .
. . . . .28
20. Restatement of Declaration............................ . . . . . . . . . . . . .
. . . . .29
21. Arbitration of Disputes................................ . . . . . . . . . . . . . .
. . . . . 29
EXHIBIT "A": RESTATED MAKENA SURF BY-LAWS
ii
MAKENA SURF
SECOND RESTATED
DECLARATION OF CONDOMINIUM PROPERTY REGIME
WHEREAS:
1. The Declaration of Horizontal Property Regime
for Makena Surf Condominium Project dated July 25, 1983, was filed in the Land
Court of the State of Hawaii as Document Number 1187665 and also recorded in
the Bureau of Conveyances in Liber 17273 at Page 327, (as filed by Makena Surf,
an Oregon partnership, whose principal place of business and post office
address is at 16th Floor, Lloyd Building, 700 N. E. Multnomah Street, Portland,
State of Oregon, 97208, the original "DECLARANT" ) hereinafter more
particularly described (the "Land"), under a Deed dated July 30,
1982, filed in the Office of the Assistant Registrar of the Land Court of the
State of Hawaii as Document No. 113141 7 , and with the Bureau of Conveyances
of the State of Hawaii; and said Declaration has been amended on numerous
occasions, such amendments having been executed and filed and recorded in said
Land Court and Bureau as follows:
AMENDMENT DATE
NUMBER
RECORDATION
9/ /89 1680039
Liber 23834
Page 586
1
The
Association of Apartment Owners restated the original Project Declaration and
all amendments thereto in a single document entitled "Makena Surf Restated
Declaration of Horizontal Property Regime Condominium Map No. 497 Condominium
File Plan No. 879" (the "Restated Declaration") which was
recorded in the Office of the Assistant Registrar of the Land Court as Document
No. 221965.3 and also recorded in the Bureau of Conveyances of the State of
Hawaii as Document No.
95-023230. The Association of Apartment Owners wishes
once again to restate the Project Declaration and all amendments since the
recording of the first restatement of the Declaration being this Makena Surf
Second Restated Declaration of Condominium Property Regime.
2. Declarant originally submitted the Land, and
all easements, rights and appurtenances belonging thereto, to a fee simple
condominium property regime (to reflect the redesignation in 1998 of
"Horizontal" Property Regime to "Condominium" Property
Regime) (the "Property" or the "Condominium Property
Regime", as the case may be), under and pursuant to the provisions of the
then Hawaii Horizontal Property Act, and as the same may from time to time be
subsequently amended and reenacted, by a Declaration of Horizontal Property
Regime (the "Declaration"), dated October 6, 1 982, filed with the
Assistant Registrar of the Land Court of the State of Hawaii as Document No.
1135584, and recorded with the Bureau of Conveyances of the State of Hawaii at
Liber 16638, Page 311 .
3. Declarant caused to be constructed upon the
Land certain buildings and structures, which constitute a part of the Property
and a part of the Condominium Property Regime, in accordance with this Second
Restated Declaration of Condominium Property Regime. Declarant filed with the
Office of the Assistant Registrar of the Land Court of the State of Hawaii, and
with the Bureau of Conveyances of the State of Hawaii, plans (the
"Condominium Map"; designated as Condominium File Plan No. 858 in the
Bureau of Conveyances of the State of Hawaii) that show the layout, location,
apartment number, and the dimensions of the Apartments.
4. Declarant withdrew an earlier Declaration of
Horizontal Property Regime, dated October 6, 1982, from the Office of Assistant
Registrar of the Land Court of the State of Hawaii and the Bureau of
Conveyances of the State of Hawaii, and the Condominium Map, and substituted
with the Office of the Assistant Registrar of the Land Court of the State of
Hawaii and the Bureau of Conveyances of the State of Hawaii the above
referenced Declaration of Horizontal Property Regime dated July 25, 1983, and a
Condominium Map that shows generally the layout and location of the Apartments
and Common Elements of the Project.
2
5. Declarant adopted By-Laws (the "Makena
Surf By-Laws"), dated October 6, 1982, which govern the operation of the
Property, provide for the government of the Association of Apartment Owners of
the Condominium Property Regime (the "Association "), the regulation
of the Property, and which contain certain uniform restrictions, covenants and
conditions upon the Apartments and the Common Elements (which "run with
the land"), for the mutual benefit of all the owners of the apartments of
the Condominium Property Regime. The Makena Surf By-Laws were filed in the
Office of the Assistant Registrar of the Land Court of the State of
The original
Declarant, having been the sole owner of the Property, and having submitted,
the Land, including the buildings and structures to be constructed thereon
in" accordance with the plans and specifications herein more particularly
described, arid in accordance with the Condominium Map, and all easements,
rights and appurtenances belonging thereto, to a condominium property regime,
under and pursuant to the provisions of the then Hawaii Horizontal Property
Act, and the original Declarant and the Association from time to time having
amended the same, THE ASSOCIATION DOES HEREBY DECLARE THIS TO BE THE EFFECTIVE
SECOND RESTATED DECLARATION OF CONDOMINIUM PROPERTY REGIME OF MAKENA SURF.
1. Description
of Land.
The land
submitted to the Condominium Property Regime is described as follows:
PARCEL FIRST:
All that
certain parcel of land situate at Papaanui, Kalihi, Honuaula, Makawao, District
of Makawao, County of Maui, State of Hawaii, described as follows:
Lot 1 0-A-1,
area 10.666 acres, as shown on Map 6, filed in the Office of the Assistant
Registrar of the Land Court of the State of Hawaii with Land Court Application
No. 1846 (amended) of Ulupalakua Ranch, Inc.
Together with
an easement for road, utilities and sewer purposes over and across the
following:
3
All of that
certain parcel of land situated at Keauhou and Palauea, Honuaula, Makawao,
Maui, State of Hawaii, being portions of Land Patent 8213, Land Commission
Award 6715 to Hoomanawanui and Land Commission Award 11,216, Apana 21 to M.
Kekauonohi (Certificate of Boundaries No. 66), more particularly described as
follows:
Beginning at a
3/4-inch pipe at the Southeast corner of this parcel of land on the Westerly
boundary of Lot 1 of Land Court Application 1804, the coordinates of which
referred to Government Survey Triangulation Station "PUU OLAI" being
1 0,022.87 feet North 2,870.27 feet East, and running by azimuths measured
clockwise from true South:
1. 89deg. 14' 40" 65.02
feet along Grant 234 to L. L.Torbert
and Wm.
Wilcox to a 3/4-inch pipe;
2. 156deg. 35' 10" .05
feet along remainder of L.C. Aw.
6715 to Hoomanawanui;
3. 156deg. 32' 40" 1,338.90 feet along remainder of L.C. Aw. 6715 to Hoomanawanui and L.C. Aw. 11,216, Apana 21 to M.Kekauonohi;
thence along remainder of L.C. Aw. 11,216, Apana 21 to M.
Kekauonohi on a curve to the right with a radius of 960.00 feet, the chord
azimuth and distance being:
4. 170deg. 13' 40" 454.1
9 feet;
5. 183deg. 54' 40" 629.58 feet along remainder of L.C. Aw. 11,216, Apana 21 to M. Kekauonohi;
thence along remainder of L.C. Aw. 11,216, Apana 21 to M.
Kekauonohi on a curve to the left with a radius of 420.00 feet, the chord
azimuth and distance being:
6. 165deg. 28'
40" 265.61 feet;
7. 147deg. 02'
40" 228.17 feet along
remainder of L.C. Aw. 11,216, Apana
21 to M.Kekauonohi;
4
8. 167deg. 52' 40" 327.2
feet;
9. 188deg. 42' 40" 1,000.15.
feet along remainder of L.C. Aw. 11,216,
Apana
21 to M. Kekauonohi;
10. 278deg. 42' 40" 60.00
feet along Lot 1 of Land Court Application 1804
11. 8deg. 42' 40" 1,000.15 feet along Lot 1 of Land Court Application 1804;
thence along Lot 1 of Land Court Application 1804, on a
curve to the left with a radius of 400.00 feet, the chord azimuth and distance
being:
12. 347deg. 52' 40" 284.52
feet;
13. 327deg. 02' 40" 282.17 feet along Lot 1 of Land Court Application 1804;
thence along Lot 1 of Land Court Application 1804, on a
curve to the right with a radius of 480.00 feet, the chord azimuth and distance
being:
14. 345deg. 28' 40" 303.55
feet;
15. 3deg. 54' 40" 629.58 feet along Lot 1 of Land Court Application 1804;
thence along Lot 1 of Land Court Application 1804, on a
curve to the left with a radius of 900.00 feet, the chord azimuth and distance
being:
16. 350deg. 13' 40" 425.80
feet;
17. 336deg. 32' 40" 1,338.92
feet along Lot 1 of Land Court Application 1804;
18. 336deg. 35' 10" 25.12
feet along Lot 1 of Land Court Application 1 804 to the point of beginning and containing
an area of 5.862 acres.
5
as granted by Grant of Easement dated
PARCEL SECOND:
All of that
certain parcel of land, being a portion of Royal Patent 6395, Land Commission
Award 2658, Apana 2 to Kiniakua, situated at Waipio, Makawao, Island and County
of Maui, State of Hawaii and being more particularly described as follows:
Beginning at a
pipe at the East corner of this parcel of land, the coordinates of said point
of beginning referred to Government Survey Triangulation Station "PUU OLAI"
being 4,551.40 feet South and 20,050.33 feet West and running by azimuths
measured clockwise from true South:
1. 34deg. 30' 00" 70.00 feet
along
2. 117deg. 00' 00" 83.00 feet
along the same pipe;
3. 99° 45' 00" 1.77 feet along same to a point on the rock line at seashore;
Thence along
the shoreline, certified by the State of
4. 185deg, 45' 00"
28.10 feet;
5. 228deg. 48'
00" 22.17 feet;
6. 2710 00'
00" 58.81 feet
along said
7. 300deg. 30' 00" 43.00 feet
along same to the point of beginning and
containing an area of 6,050 square feet, more or less, as per survey of
George F.
Newcomer, Registered Professional
Land Surveyor, Certification Number 2715-S, dated January 6, 1982.
6
SUBJECT, HOWEVER, TO:
As to Parcels
First and Second:
1 .Reservation
in favor of the State of
2. Shoreline
setback lines as they may be established by the State Land Use Commission or by
the
3. Condominium
Map No. 497 filed in the Office of the Assistant Registrar of the Land Court of
the State of
4. Declaration
of Horizontal Property Regime dated
Document No. 1230471, Liber 17807, Page 148
Document No. 1253367, Liber 18093, Page 653
Document No. 1253368, Liber 18093, Page 660
Document No. 1293397, Liber 18568, Page 663
Document No. 1253369, Liber 18093, Page 667
Document No. 1339480, Liber 19166, Page 154
Document No. 1570522, Liber 22221, Page 59
Document
No. 1669354, Liber 23682, Page "293
5. By-Laws of
the Association of Apartment Owners of Makena Surf dated
6. The terms
and provisions of Commissioner's Deed dated
7. Short Forms
Makena Surf Workout Agreement filed as Document Nos. 1570523, 1570524, 1570525,
1570526, 1570527, 1570528, 1527029, and 1570530, and recorded in Liber 22220,
Page 799, Liber 22221, Page 73, Page 75, Page 77, Page 79, Page 81, Page 83 and
Page 85, respectively.
As to Parcel First Only:
8. Declaration of Covenants, Conditions and
Restrictions (Tsunami or Storm
7
Wave District) dated
9. Easement 8,
as shown on Map 2, Land Court Application No. 1846 (amended), for utility
purposes, as set forth by Land Court Order No. 63679.
10. Easement
9, as shown on Map 2, Land Court Application No. 1846 (amended), for electrical
purposes, as set forth by Land Court Order No. 63679.
11. Easement
10, as shown on Map 2, Land Court Application No. 1846 (amended), for
electrical purposes, as set forth by Land Court Order No. 63679.
12. Easement
11, as shown on Map 2, Land Court Application No. 1846 (amended), for electrical
purposes, as set forth by Land Court Order No. 63679.
13. Easement
12, as shown on Map 2, Land Court Application No. 1846 (amended), for
electrical purposes, as set forth by Land Court Order No. 63679.
14. Easement
16, as shown on Map 3, Land Court Application No. 1846 (amended), for
electrical purposes, as set forth by Land Court Order No. 63679.
15. Easement
18, as shown on Map 3, Land Court Application No. 1846 (amended), for drainage
purposes, as set forth by Land Court Order No. 68421.
16. Easement
22, as shown on Map 6, Land Court Application No. 1846 (amended), for public
parking purposes, as set forth by
17. Easement
23, as shown on Map 6, Land Court Application No. 1846 (amended), for
pedestrian purposes, as set forth by Land Court Order No. 95435.
18. Easement
24, as shown on Map 6, Land Court Application No. 1846 (amended), for
electrical purposes, as set forth by Land Court Order No. 95435.
19. Easement
25, as shown on Map 6, Land Court Application No. 1846 (amended), for public
parking purposes, as set forth by Land Court Order No. 95435.
2. Name of Condominium Property Regime.
The name of
the Condominium Property Regime is, and the property hereby submitted shall be
known as, "MAKENA SURF", and the association of apartment owners
hereby created shall be known as the "ASSOCIATION OF APARTMENT OWNERS OF
MAKENA SURF".
8
3. Description
of Buildings.
Six (6)
separate Apartment Buildings (collectively the" APARTMENT BUILDINGS",
and each separately referred to as "Building A", "Building
B", "Building C", "Building E", "Building F"
and "Building G", a Pool Storage and Equipment Building (the
"POOL STORAGE AND EQUIPMENT BUILDING"), a Maintenance Shed (the
"MAINTENANCE SHED"), an Office/Storage/Manager's Apartment Building
(the "OFFICE/STORAGE/MANAGER'S APARTMENT BUILDING"), and two Covered
Tennis Pavilions (collectively the "COVERED TENNIS PAVILIONS"), the
South Pool Kitchen and Equipment Building ("SOUTH POOL KITCHEN AND
EQUIPMENT BUILDING") and the Jacuzzi Equipment Building, ("THE
JACUZZI EQUIPMENT BUILDING"), both adjacent to the South Pool) shall be
constructed on the land. The location of each building with respect to the land
is shown by the Condominium Map (as amended by Exhibit B, to the Restated
Declaration).
Apartment
Building A will consist of two stories, including the ground floor, and a loft
area, and seven (7) apartments. Apartment Building B will consist of three
stories, including the ground floor, and twenty-two (22) apartments. Apartment
Building C will consist of two stories, including the ground floor, and
fourteen (14) apartments. Apartment Building E will consist of three stories,
including the ground floor, and sixteen (1 6) apartments. Apartment Building F
will consist of three stories, including the ground floor, and thirty-two (32)
apartments. Apartment Building G will consist of three stories, including the
ground floor, and sixteen (16) apartments.
The Pool
Storage and
The
Maintenance shed will be a one-story building and will not contain a basement.
The
Office/Storage/Manager's Apartment Building will consist of two stories,
including the ground floor, and will contain one apartment for the use of
persons designated by the Association, an office, and a storage area. The
Office/Storage/ Manager's Apartment Building does not contain a basement.
The South Pool
Equipment and
The
9
The principal
materials of which each Apartment in Buildings B, E, F and G shall be
constructed are as follows: The ground floor slab shall be of poured standard
weight aggregate concrete; the construction of each floor above the ground
floor shall be of wood joists, plywood decking and a poured 1 %" thick
lightweight concrete topping or 1 " thick gypcrete topping; the exterior
sides shall be of wood frame; the structural perimeter wall between apartments
shall be of reinforced concrete blocks finished with painted plaster; the walls
between the rooms within each apartment shall be of wood studs covered with
painted gypsum board; the ceilings within each apartment shall be of wood
joists covered with textured painted gypsum board or cedar panels; the roof of
each apartment Building shall be of colored tile over plywood deck; the
interior floor of each apartment shall be covered with carpet or tile; the
lanai floor of each apartment shall be tile over concrete slab or lightweight
concrete topping over plywood deck over wood joists. The principal materials
from which Building C shall be constructed are the same as above, however, the
floors of the second floor units shall be constructed of poured in place
reinforced concrete. The principal materials of which Building A shall be
constructed are the same as in Buildings B, E, F and G, however, the structural
perimeter walls between apartments in Building A shall be an 8" sound wall
consisting of 2" x 8"-top and bottom plates with a 2" x 4"
staggered stud arrangement.
The principal
materials of which the Pool Storage And Equipment Building and the South Pool
Kitchen and
The ground floor slab shall be of poured standard weight
aggregate concrete; the roof of the South Pool Kitchen and Equipment Building
shall be of colored tile over plywood deck; the roof of the Pool Storage and
Maintenance Building shall be a flat deck covered with waterproof membrane; the
exterior sides and interior walls shall be of reinforced lightweight aggregate
concrete block.
The principal
materials of which the Office/Storage/Manager's Apartment Building shall be
constructed are as follows: The ground floor slab shall be of poured standard
weight aggregate concrete; the floor construction above the ground floor slab
shall be of wood joists, plywood decking, and a poured 1 %" thick
lightweight concrete topping or 1" thick gypcrete topping; the exterior
sides shall be of wood frame; the roof shall be of colored tile over plywood
deck; the interior walls shall be of wood studs covered with painted gypsum
board; the ceilings shall be painted textured gypsum board over wood joists;
the interior floor shall be covered with carpet; tile or vinyl.
The Covered
Tennis Pavilions will be covered, open-air pavilions constructed primarily of
concrete, wood and related materials.
10
The principal
Materials from which the Maintenance Shed shall be constructed are as follows:
The ground floor slab shall be of poured
standard weight aggregate concrete;
the roof shall be of colored tile over plywood deck; the
exterior sides shall be of wood frame covered with painted gypsum board;
exterior wall covering shall be stucco.
The principal
materials from which the
A ground floor
slab shall be of poured standard weight aggregate concrete; the roof and walls
shall be of poured in place, reinforced standard weight aggregate concrete,
waterproofed and painted.
4. Location
and Description of Apartments.
The
Condominium Property Regime consists of one hundred and seven (107) apartments,
and certain common elements, as shown on the Condominium Map.
Apartments A
101 through A 103 are located on the ground floor (lower level) of Apartment
Building A, and are numbered, in ascending order, from south to north.
Apartments B 1
01 through B 108 are located on the ground floor (lower level) of Apartment
Building B, and are numbered, in ascending order, from south to north.
11
Apartments G
101 through G 106 are located on the ground floor (lower level) of Apartment
Building G, and are numbered, in ascending order, from southeast to northwest.
There are
eighteen (18) types of apartments:
A two bedroom
B two bedroom/study
c two bedroom
D two bedroom
E two bedroom/study
F three bedroom
F-1 three bedroom
G two bedroom/study
H two bedroom
I two bedroom
J two bedroom
K two bedroom
L two bedroom
M three bedroom
N two bedroom
O three bedroom
P three bedroom
Q two bedroom
The following
twenty-two (22) apartments are Type A (two-bedroom) apartments:
B102,
B103, B104, B105, B106, B107 E102, E103, E104, E105 F102, F103, F106, F107, F108, F109, F110, F111
G102, G103, G104, G105
12
Each A (two
bedroom) apartment shall consist of two bedrooms, two bathrooms, a hall, a
kitchen, a living-dining area, an owner's closet, and a lanai; and each such
apartment shall have an approximate enclosed floor space of 1 510 square feet,
a lanai of approximately 335 square feet, and an approximate total floor space
of 1845 square feet.
The following
eight (8) apartments are 8 (two bedroom/study) apartments:
B101,
B108, E101, E106, F101, F112, G101, G106
Each B (two
bedroom/study) apartment shall consist of two bedrooms, two bathrooms, a study,
a hall, a kitchen, a living-dining area, an owner's closet, and a lanai; and
each such apartment shall have an approximate enclosed floor space of 1548
square feet, a lanai of approximately 5"85 square feet, and an approximate
total floor space of 2133 square feet.
The following
twenty-two (22) apartments are C (two bedroom) apartments:
B202,
B203, B204, B205, B206, B207, E202, E203, E204, E205 F202, F203, F206, F207, F208, F209, F210, F211
G202, G203, G204, G205
Each C (two
bedroom) apartment shall consist of two bedrooms, two. bathrooms, a hall, a
kitchen, a living-dining area, an owner's closet, and a lanai; and each such
apartment shall have an approximate enclosed floor space of 1313 square feet, a
lanai of approximately 251 square feet, and an approximate total floor space of
1,564 square feet.
The following
eight (8) apartments are D (two bedroom) apartments:
B201,
B208, E201, E206, F201, F212 G201, G206
Each D (two
bedroom) apartment shall consist of two bedrooms, two bathrooms, a hall, a
kitchen, a living-dining area, an owner's closet, and a lanai; and
13
each such
apartment shall have an approximate enclosed floor space of 1379 square feet, a
lanai of approximately 237 square feet. and an approximate total floor space of
1616 square feet.
The following
twelve (12) apartments are E (two bedroom) apartments:
B302,
B303, B304, B305 E302, E303 F304, F305, F306, F307 G302, G303
Each E (two
bedroom) apartment shall consist of two bedrooms, two bathrooms, a hall, a
kitchen, a living-dining area, an owner's closet, and a lanai; and each such
apartment shall have an approximate enclosed floor space of 1038 square feet, a
lanai of approximately 251 square feet, and an approximate total floor space of
1289 square feet.
The following
eight (8) apartments are F (three bedroom) apartments:
B301,
B306, E301, E304, F301, F308, G301, G304
Each F (three
bedroom) apartment shall consist of three bedrooms, three bathrooms, a hall, a
kitchen, a living-dining area, an owner's closet, and two lanais;
and each such apartment shall have an approximate
enclosed floor space of 1640 square feet, two lanais of approximately 720
square feet (aggregate), and an approximate total floor space of 2360 square
feet.
The following
two (2) apartments are F-1 (three bedroom) apartments:
F302,
F303
Each F-1
(three bedroom) apartment shall consist of three bedrooms, three bathrooms, a
hall, a kitchen, a living-dining area, an owner's closet, and two lanais;
and each such apartment shall have an approximate enclosed
floor space of 1640 square feet, two lanais of approximately 810 square feet
(aggregate), and an approximate total floor space of 2450 square feet.
14
The following two (2) apartments are G (two
bedroom/study) apartments:
F104,
F105
Each G (two
bedroom/study) apartment shall consist of two bedrooms, two bathrooms, a study,
a hall, a kitchen, a living-dining area, an owner's closet, and two lanais; and
each such apartment shall have an approximate enclosed floor space of 1627
square feet, two lanais of approximately 694 square feet, and an approximate
total floor space of 2321 square feet.
The following
two (2) apartments are H (two bedroom) apartments:
F204,
F205
Each Type H
(two bedroom) apartment shall consist of two bedrooms, two bathrooms, a hall, a
kitchen, a living-dining area, an owner's closet, and two lanais;
and each such apartment shall have an approximate
enclosed floor space of 1420 square feet, two lanais of approximately 340
square feet, and an approximate total floor space of 1760 square feet.
The following
ten (10) apartments are Type I (two bedroom) apartments:
C102,
C103, C104, C105, C106 C202, C203, C204, C205, C206
Each Type I
(two bedroom) apartment shall consist of two bedrooms, two bathrooms, a hall, a
kitchen, a living area, a dining area, an owner's closet, and two lanais; and
each such apartment shall have an approximate enclosed floor space of 1 600
square feet, two lanais of approximately 396 square feet combined, and an
approximate total floor space of 1996 square feet.
The following
four (4) apartments are Type J (two bedroom) apartments:
C101,
C107 C201, C207
Each Type J
(two bedroom) apartment shall consist of two bedrooms, two bathrooms, a hall, a
kitchen, a living area, a dining area, an owner's closet, and a double
wraparound lanai; and each such apartment shall have an approximate enclosed
floor space of 1,600 square feet, a double wraparound lanai of approximately
15
896 square feet, and each such apartment shall have an
approximate total floor space of 2496 square feet.
The following
apartment is a Type K (two bedroom) apartment:
A 101
Each Type K
(two bedroom) apartment shall consist of two bedrooms, two bathrooms; a hall, a
kitchen, a living area, a dining area, a utility room, an owner's closet, and
two lanais; and each such apartment shall have an approximate enclosed floor
space of 1644 square feet, a lanai of approximately 533 square feet, and each
such apartment shall have an approximate enclosed floor space of 2177 square
feet.
The following
apartment is a Type L (two bedroom) apartment:
A-102
Each Type L
(two bedroom) apartment shall consist of two bedroom~, two bathrooms, a hall, a
kitchen, a living-dining area, a utility room, an owner's closet, and two
lanais; and each such apartment shall have an approximate enclosed floor space
of 1616 square feet, a lanai of 455 square feet, and an approximate total floor
space of 2071 square feet.
The following
apartment is a Type M (three bedroom apartment:
A-103
Each Type M
(three bedroom) apartment shall consist of three bedrooms, three bathrooms, two
half bathrooms, a hall, a kitchen, a living-dining area, a utility room, an
owner's closet, and two lanais; and each such apartment shall have an
approximate enclosed floor space of 341 5 square feet, a lanai of 934 square
feet, and an approximate total floor space of 4349 square feet.
The following
apartment is a Type N (two bedroom) apartment:
A-201
Each Type N
(two bedroom) apartment shall consist of two bedrooms, two bathrooms, a hall, a
kitchen, a living-dining area, a utility room, an owner's closet, and two
lanais; and each such apartment shall have an approximate enclosed floor space
of 1644 square feet, a lanai of 635 square feet, and an approximate total floor
space of 2279 square feet.
16
The following
apartment is a Type 0 (three bedroom) apartment:
A-202
Each Type 0
(three bedroom) apartment shall consist of three bedrooms, three bathrooms, a
hall, a kitchen, a living-dining area, a utility room, an owner's closet, and
three lanais; and each such apartment shall have an approximate enclosed floor
space of 1586 square feet (including a loft area of 908 square feet and loft
lanai of 424 square feet as limited common elements appurtenant thereto), lanai
areas of 364 square feet, and an approximate total unit floor space of 1 950
square feet plus 1332 square feet of limited common elements.
The following
apartment is a Type P (three bedroom) apartment:
A-203
Each Type P
(three bedroom) apartment shall consist of three bedrooms, three bathrooms, a
hall, a kitchen, a living-dining area, a utility room, an owner's closet, and
three lanais; and each such apartment shall have an approximate enclosed floor
space of 1586 square feet and lanai area of 352 square feet,(and including a
loft area of 891 square feet and a loft lanai of 424 square feet as limited
common elements appurtenant thereto), for an approximate total floor space of
1938 square feet plus 1 31 5 square feet of limited common elements.
The following
apartment is a Type Q (two bedroom) apartment:
A-204
Each Type Q
(two bedroom) apartment shall consist of two bedrooms, two bathrooms, a hall, a
kitchen, a living-dining area, a utility room, an owner’s closet, and two
lanais; and each such apartment shall have an approximate enclosed floor space
of 1 622 square feet, a lanai of 620 square feet, and an approximate total
floor space of 2242 square feet.
Each apartment
shall consist of the space measured horizontally by the distances between the
interior surfaces of the perimeter walls of each apartment, and the space
measured by the lanai (or lanais) of each apartment; and measured vertically by
the distance between the topside surface of the floor and the underside surface
of the ceiling of each apartment. The floor space areas listed herein are
approximate only, and the Declarant makes no representations or warranties
whatsoever as to the exact area of any particular apartment.
17
In
interpreting (a) any deed, lease, mortgage, or any other instrument that
creates any estate, right or interest in or with respect to an apartment, (b)
this Second Restated Declaration of Condominium Property Regime, or the (c)
Condominium Map, the existing physical boundaries of each apartment (as located
in accordance with the foregoing description), or any apartment reconstructed
substantially in accordance with the Condominium Map, shall control and shall
constitute the boundaries of each apartment, regardless of any settling or
lateral movement of an Apartment Building, and notwithstanding any minor
variations between such existing physical apartment boundaries and the
apartment boundaries shown in the Condominium Map.
Each apartment
located on the ground floor of an Apartment Building shall have immediate
access to the Land. Each other apartment shall have immediate access to the
open entry corridors that provide entry for the apartments located above the
ground floor of an Apartment Building, the exterior stairs for each Apartment
Building, and to the Land.
In addition to
the rights and easements created and established by the Hawaii Condominium
Property Act in and with respect to the common elements of the Condominium
Property Regime hereby established, each apartment shall have appurtenant
thereto, under and by virtue of this Second Restated Declaration, a
nonexclusive easement in the common elements designed for such purpose for
ingress and egress, utility services, support, maintenance and repair, as the
case may be; and the Association shall have the irrevocable right, under and by
virtue of this Declaration, and in addition to the rights created and given to
the apartment owners by the Hawaii Condominium Property Act, to be exercised by
its Board of Directors, Manager or Managing Agent, as the case may be, to enter
each apartment from time to time during reasonable hours as may be necessary
for the repair, replacement, restoration or installation of any common element.
5. Description
of Common Elements.
The common
elements include:
(a) The Land, and the super-adjacent airspace
above the roof, and next to the exterior walls, of each Apartment
Building. Parts of the Land will be
encumbered by a public beach access easement (the "Public Beach Access
Easement") that the Declarant shall grant to the County of Maui under an
instrument to be filed in the Office of the Assistant Registrar of the Land
Court of the State of Hawaii (the" Public Beach Access Easement
Instrument"), and will be encumbered by a public parking easement (the"
Public Parking Easement") for nine (9) public parking stalls, that the
18
Declarant shall grant to the
(b) All easements, rights and appurtenances that
appertain to the benefit and use of the Property.
(c) The following parts of each Apartment
Building: all foundations, columns, girders, beams and supports, bearing walls,
roofs, structural frame (except that the windows and window frames, doors and
door frames, for each apartment, located within the structural frame of each
Apartment Building, shall be a part of that apartment, and not parts of the
common elements), perimeter walls between apartments, floors and ceiling, the
open entry corridors, the open corridor on the third floor (top level) of each
Apartment Building, the exterior stairs for each Apartment Building, the attic
of each Apartment Building.
(d) The Office/Storage/Manager's Apartment
Building, the Pool Storage and Equipment Building, The South Pool Kitchen and
Equipment Building, the Jacuzzi Equipment Building, the Maintenance Shed, the
North Entry Way and Gate, the South Main Entry Way and Gates, the storage/electrical
rooms located in each Apartment Building, four tennis courts, two Covered
Tennis Pavilions, two swimming pools, two outdoor whirlpool spas, outdoor
lighting, and all garden, walkway and parking areas (but not including the
Public Parking Easement area, the use, maintenance and administration of which
is governed by the Public Parking Easement Instrument).
(prior amendment dated
(e) Parts of the land (which shall be common
elements) shall be open to restricted use by the general public at such times
and upon such terms, conditions, rules and regulations as the Association, by
its board of directors, shall from time to time establish (the "Public
Common Elements"). The Public Common Elements include the following:
1) "Historic Site 31,
Enclosure/Terrace";
2) "Historic Site B10-25 Enclosure";
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3) The "Unimproved Shoreline .Path"
that runs along the beach;
4) The three (3) foot wide trails from the public beach access easement areas to each of the above historic sites.
The Condominium Map shows the approximate location of the
Public Common Elements.
(f) All central and appurtenant installations for
services such as power, light, telephone, gas, hot and cold water, heating,
refrigeration, air conditioning, television, sewage disposal, and other
utilities (including all pipes, ducts, wires cables, and conduits used in
connection therewith, whether located within common elements or within
apartments), and all tanks, pumps, motors, fans, compressors, ducts and other
apparatus and installations existing for common use.
(g) All tangible personal property, accounts,
general intangibles, instruments and money, and any apartment acquired and held
by the Association, or its agents, for the administration, maintenance, safety
and operation of the common elements of the Condominium Property Regime, or for
the common use and benefit of the apartment owners.
(h) All other apparatus and installations existing
for, or rationally of common use to, or necessary or convenient to the
existence, maintenance or safety of all the apartments of the Condominium
Property Regime.
(i) Designation of additional areas to be common
elements or subject to common expenses shall require the approval of ninety
percent of the apartment owners. (
6. Change
In Use of Common Elements.
The use made
of those parts of the common elements which are an integral part of an
Apartment Building, as shown and contemplated by the Condominium Map and by
this Second Restated .Declaration, shall not be changed by the Association or
by any apartment owner, except upon the unanimous consent of all the apartment
owners, which shall be valid when evidenced by an instrument, filed in the
Office of the Assistant Registrar of the Land Court of the State of Hawaii and
the Bureau of Conveyances of the State of Hawaii, made by two officers of the
Association who have been duly authorized, certifying that such unanimous
consent for such change in the use of such common elements have been given by
all of the apartment owners, and that this Second Restated Declaration has been
amended accordingly. The use made of those parts of the common elements which
are not an integral part of an
20
Apartment Building, but which are upon or connected with
the Land, as shown and contemplated by the Condominium Map and by this Second
Restated Declaration, shall not be changed by the Association or by any
apartment owner, except by the vote of owners of apartments to which are
appurtenant not less than seventy-five percent (75%) of common interests in the
Condominium Property Regime, which shall be valid when evidenced by an instrument,
filed with the Office of the Assistant Registrar of the Land Court of the State
of Hawaii and the Bureau of Conveyances of the State of Hawaii, made by two
officers of the Association who have been duly authorized, certifying that such
vote for such change in the use of such common elements has been given, and
that this Second Restated Declaration has been amended accordingly.
7. Control
Over Public Common Elements.
The
Association, by its Board of Directors, shall have the power to regulate the use
of the Public Common Elements. The Association shall be responsible for the
maintenance and repair of the Public Common Elements.
8. Limited
Common Elements: Description: Fees and Charges for Limited Common Elements.
Any pump
motor, fan, compressor or duct, or any installation for power, light,
telephone, gas, hot and cold water, heating, refrigeration, television, sewage
disposal, air conditioning or other utilities (including all pipes, ducts,
wires, cables and conduits used in connection therewith), located in a common
element, designed to serve only one apartment (that is, not designed or
existing for common use), and the loft areas and loft lanais of units A202 and
A203, shall be appurtenant to such apartment, as a limited common element and
the same shall be reserved for the exclusive use and benefit of such apartment,
and all costs and expenses of every description pertaining thereto including
but not limited to the cost of the maintenance, repair and replacement thereof,
and the making of any additions and improvements thereto, shall be charged to
the owner of such apartment. The Owners of Apartments A202 and A203 shall be
charged maintenance fees for the loft areas and loft lanais appurtenant to
those units at a rate per square foot to be determined from time to time by the
Board of Directors commensurate with the actual increased expense attributable
to the added space appurtenant to each such apartment. In no event shall the
rate charged exceed the rate being charged for space within apartments in the
project.
9. Percentages
of Undivided Interest.
The percentage of undivided interest in the common
elements appertaining to each Apartment is as follows:
21
Apartment No. Common Element Percentage
A101 1.09205
A102 1.03888
A103 2.18159
A201 1 14322
A202 0.97818
A203 0.97216
A204 1.12466
B101 1.06998
B102 0.92551
B103 0.92651
B104 0.92551
B105 0.92561
B106 0.92551
B107 0.92561
B108 1.06998
B201 0.81063
B202 0.78456
B203 0.78456
B204 0.78455
B205 0.78456
B206 0.78455
B207 0.78455
B208 0.81063
B301 1.18385
B302 0.64660
B303 0.64660
B304 0.64660
B305 0.64660
B306 1.18385
C101 1.25207
C102 1.00125
C103 1.00125
C104 1.00125
C105 1.00125
Cl06 1.00125
22
C107 1.25207
C201 1.25207
C202 1.00125
C203 1.00125%
C204 1.00125%
C205 1.00125%
C206 1.00125%
C207 1.25207%
E101 1.06998%
E102 0.92551%
E103 0.92551%
E104 0.92551%
E105 0.92551%
E106 1.06998%
E201 0.81063%
E202 0.78455%
E203 0.78455%
E204 0.78455%
E205 0.78455%
E206 0.81063%
E301 1.18385%
E302 0.64660%
E303 0.64660%
E304 1.18385%
F101 1.06998%
F102 0.92551%
F103 0.92551%
F104 1.16428%
F105 1.16428%
F106 0.92551%
F107 0.92551%
F108 0.92551%
F109 0.92551%
F110 0.92551%
F111 0.92551%
F112 1.06998%
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F201 0.81063%
F202 0.78455%
F203 0.78455%
F204 0.88287%
F205 0.88287%
F206 0.78455%
F207 0.78455%
F208 0.78455%
F209 0.78455%
F210 0.78455%
F211 0.78455%
F212 0.81063%
F301 1.18385%
F302 1.22899%
F303 1.22899%
F304 0.64660%
F305 0.64660%
F306 0.64660%
F307 0.64660%
F308 1.18385%
G101 1.06998%
G102 0.92551%
G103 0.92551%
G104 0.92551%
G105 0.92551%
G106 1.06998%
G201 0.81063%
G202 0.78455%
G203 0.78455%
G204 0.78455%
G205 0.78455%
G206 0.81063%
G301 1 .18385%
G302 0.64660%
G303 0.64660%
G304 1.18385%
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10. Statement
As To Use Of Apartments.
The apartments
are intended to be used as residential apartments. The apartments may be used
for 'transient vacation rentals'. The phrase 'transient vacation rentals' shall
have the meaning given by Hawaii Revised Statutes Chapter 514E, as amended or
reenacted.
No 'time share
plan' can be created for or in respect of any Apartment, and no Apartment shall
be the subject of any 'time share plan'. The phrase 'time share plan' shall
have the meaning given by Hawaii Revised Statutes Chapter 514E, as amended or
reenacted. .
The
Association shall have the right and power, to be exercised by the Board of
Directors of the Association, to deny any person entry to, or the possession
of, any Apartment for which a time share plan has been created in violation of
this section, so long as such violation shall continue. The Association may
bring an action, by the Board of Directors of the Association, to obtain
appropriate injunctive relief to prevent any violation of this section, or to
require the observance of this section, 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 in any
such action that other relief is inadequate or that the damages suffered by the
Association or by any apartment owner are or may be irreparable.
The
Association shall have the power to enact resolutions, rules and regulations,
and the power to amend and repeal the same from time to time, reasonably
restricting and regulating the use of the Apartments and the common elements;
provided, that any such resolution, rule or regulation shall be consistent with
the terms of this Second Restated Declaration, and the Makena Surf By-Laws.
10A. Certain
Work Prohibited.
No apartment
owner shall do any work which could jeopardize the soundness or safety of the
property, reduce the value thereof, or impair any easement or hereditament, nor
may any apartment owner add any material structure or excavate any additional
basement or cellar, without in every such case the consent of seventy-five
percent of the apartment owners, together with the consent of all apartment
owners whose apartments or limited common elements appurtenant thereto are
directly affected, being first obtained; provided that nonmaterial structural
additions to the common elements, including, without limitation, the
installation of solar energy devices, or additions to or alteration of an
apartment made within such apartment or within a limited common element
appurtenant to and for the exclusive use of the apartment shall require
approval only by the Board of Directors of the
25
Association and such percentage, number, or group of
apartment owners as may be required by the Declaration or By-Laws.
"Nonmaterial structural additions to the common elements", as used in
this section, means a structural addition to the common elements which does not
jeopardize the soundness or safety of the property, reduce the value thereof,
impair any easement or hereditament, detract from the appearance of the
project, interfere with or deprive any non-consenting owner of the use or
enjoyment of any part of property, or directly affect any non-consenting owner.
For purposes of this section, "solar energy
device" means any new identifiable facility, equipment, apparatus, or the
like which makes use of solar energy for heating, cooling, or reducing the use
of other types of energy dependent upon fossil fuel for its generation;
provided that if the equipment sold cannot be used as a solar device without
its incorporation with other equipment, it must be installed in place and ready
to be made operational in order to qualify as a "solar energy
device." (HRS § 514A-89)
11. Service
of Process.
WILLIAM F.
CROCKETT, whose business address is 38 South Market Street, Wailuku, County of
Maui, State of Hawaii 96793, is hereby designated as the person to receive
service' of process until such time as the first Board of Directors for the
Association be elected. Thereafter, the Board of Directors of the Association
shall from time to time appoint a Manager or a Managing Agent (whose residence
or place of business shall be located within the County of Maui, State of
Hawaii) who shall be authorized to receive service of process upon the
Association, or upon two or more apartment owners in any action relating to the
common elements of the property or relating to more than one apartment.
12. Reconstruction
of Improvements.
In the event
any Apartment Building or any of the common elements of the Condominium
Property Regime are damaged or destroyed, the same shall be rebuilt, repaired
or restored under the terms and on the conditions contained in the Makena Surf
By-Laws, which terms and conditions are made a part hereof by reference.
13. Amendments
to Declaration.
Except as
provided elsewhere in this Second Restated Declaration by specific grant to or
reservation of power to the Declarant or its successor in interest, this Second
Restated Declaration may be amended by the vote or written consent of the
owners of apartments to which are appurtenant not less than seventy-five
percent (75%) of common interests in the Condominium Property Regime, (HRS §
514A11 (11)) which shall be valid when evidenced by an instrument filed in the
Office of
26
the Assistant Registrar of the Land Court of the State of
Hawaii and the Bureau of Conveyances of the State of Hawaii, made by two officers
of the Association who have been duly authorized, certifying that such vote has
been given, and that this Second Restated Declaration has been amended
accordingly; provided that any such amendment shall be consistent with the
provisions of the Hawaii Condominium Property Act, and as the same may from
time to time be amended or reenacted.
Upon the
occasion of the adoption of each amendment to this Second Restated Declaration,
the Board of Directors shall cause a new" Amended and Second Restated
Declaration of Condominium Property Regime" incorporating all amendments
to date, to be prepared, certified, recorded and filed as set forth above, and
to become thereafter the Declaration of Condominium Property Regime for the
project.
Upon the
completion of the construction of the improvements shown by the Condominium
Map, or any part thereof, the Declarant shall have the irrevocable power
(without the consent of the Association or the consent of any apartment owner),
to execute and file with the Office of the Assistant Registrar of the Land
Court of the State of Hawaii and with the Bureau of Conveyances of the State of
Hawaii, amendments to this Declaration to which shall be attached the verified
statement of a registered architect or professional engineer (the "as
built certificate"), as required by Hawaii Revised Statutes § 514A-1 2.
(The foregoing irrevocable power vested in the Declarant is intended to be a
"power given as security" and a "power coupled with an
interest".)
14. Makena
Surf By-Laws
The Association
shall be governed by, and each apartment and the common elements of the
Condominium Property Regime shall be held, used, conveyed, hypothecated,
encumbered, leased, rented, repaired, reconstructed, renovated, rebuilt,
improved and regulated and governed in every respect, subject to the
limitations, restrictions, covenants, conditions and by-laws contained in the
Restated Makena Surf By-Laws, all of which are made a part of this Second
Restated Declaration by this reference, effective as of the date of the filing
of the same with the Office of the Assistant Registrar of the Land Court of the
State of Hawaii, and the Bureau of Conveyances of the State of Hawaii, and as
the same may from time to time be amended as therein provided.
15. Formation
of Association Of Apartment Owners.
The Makena
Surf Association of Apartment Owners hereby established shall be formed and
constituted as of the date of the filing of the Declaration Of Condominium
Property Regime in the Office of the Assistant Registrar of the Land Court of
the State
27
of Hawaii, and the Bureau of Conveyances of the State of
Hawaii Declarant shall have and may exercise the rights, and shall be liable
for the performance of the duties and obligations, of an apartment owner in
respect of each apartment until Declarant delivers an apartment deed for such
apartment. .
16. Grant
of Easement Over Common Elements.
Each apartment
owner hereby irrevocably appoints the Board of Directors of the Association as
his attorney-in-fact, with full power and authority to grant, in the name and
on behalf of each apartment owner, any easement over, through or across any
part of the land or the common elements of the Property, which grant of
easement has been approved by the vote of owners of apartments to which are
appurtenant not less than sixty-five percent (65%) of common interests in the
Condominium Property Regime. (The foregoing irrevocable power vested in the
Association's Board of Directors is intended to be a "power given as
security" and a "power coupled with an interest”.)
17. Inconsistency
of Provisions.
In the event
of any conflict between or inconsistency among the terms and provisions of this
Second Restated Declaration and the terms and provisions of the Restated Makena
Surf Bylaws or any other documents relating to the Condominium Property Regime,
the terms and provisions of this Second Restated Declaration shall be deemed to
control.
18. Association
Registration.
The
Association shall register with the Real Estate Commission as provided in
Section 514A-95.1, Hawaii Revised Statutes, as amended, and to comply with all
requirements and impositions therein set forth. (HRS § 514A-95.1)
19. Waiver
of Use of Common Elements.
No apartment
owner may exempt himself from liability for his contribution towards the common
expenses by waiver of the use or enjoyment of any of the common elements or by
abandonment of his apartment. Subject to such terms and conditions as may be
specified in the By-laws, any apartment owner may, by conveying his apartment
and his common interest to the Board of Directors on behalf of all other
apartment owners, exempt himself from common expenses thereafter accruing. (HRS
§ 514A-92)
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20. Restatement
of Declaration.
The
Association may at any time restate this Second Restated Declaration, the
Restated Makena Surf By-Laws or other Exhibits to this Second Restated
Declaration to set forth all amendments thereof or to conform with Chapter
514A, Hawaii Revised Statutes, or any other statute, ordinance, rule or regulation
enacted by any governmental authority. Such restated Declaration and/or By-Laws
shall be approved by resolution adopted by the Board of Directors and shall be
as fully effective for all purposes as if adopted by the vote or written
consent of the apartment owners. Such document restated pursuant to this
Paragraph shall identify each portion so restated and shall contain a statement
that such portions have been restated solely for purposes of information and
convenience, identify the statute, ordinance, rule, regulation, or prior
amendment, implemented by the amendment, and that in the event of any conflict,
the restated Declaration or By-Laws shall be subordinate to the cited statute,
ordinance, rule, regulation, original Declaration or By-Laws and all prior
amendments. It shall further state that the restated Declaration or By-laws
correctly set forth without change the corresponding provisions of the
Declaration or By-Laws, as amended, and that upon recordation thereof in the
Bureau of Conveyances, the restated Declaration or By-Laws shall supersede the
original Declaration or By-Laws and all prior amendments thereto. (HRS §
514A-82.2)
21. Arbitration
of Disputes.
As, and to the extent, and in the manner, provided for in
Part VII of Chapter 514A, Hawaii Revised Statutes, as amended, at the request
of any party, any dispute concerning or involving one or more apartment owners
and the Association, Board of Directors, Managing Agent or one or more other
apartment owners relating to the interpretation, application or enforcement of
the Condominium Property Act, this Second Restated Declaration, the Restated
By-Laws or the administrative rules and regulations adopted in accordance with
the By-Laws shall be submitted to mediation and/or arbitration. The arbitration
of appropriate disputes shall be conducted, unless otherwise agreed by the
parties, in accordance with the rules adopted by the Real Estate Commission and
the provisions of Chapter 658 Hawaii Revised Statutes. (Part VII, HRS Chapter
514A)
29