The DECLARATION OF ESTABLISHMENT OF RESTRICTIONS, recorded October 1, 1956, was amended October 20, 1999. This FIRST AMENDMENT TO THE DECLARATION OF ESTABLISHMENT OF RESTRICTIONS is presented here, followed by the original document. These documents apply to all 114 parcels. This web site is for the convenience of the Riviera District homeowners and real estate agents.
The Orange County Clerk/Recorder can provide copies of the documents.
The First Amendment is 19990736924.
The revisions apply to Instrument 131823, Book 3662, and pages 305-313.
FIRST AMENDMENT TO DECLARATION OF
ESTABLISHMENT OF RESTRICTIONS
RECITALS
A. Whereas, Bank of America executed that certain “Declaration of Establishment of restrictions” dated September 20, 1956 which was recorded on October 1, 1956, as Instrument Number 131823, in Book 3662, Pages 305 to 313 Inclusive, in the office of the Recorder of Orange County, California (the “Declaration”); and
B. Whereas, the Declaration affects and encumbers the following real property located in the City of San Clemente, County of Orange, State of California:
All of Tract 2964, consisting of one hundred fourteen (114) lots,
numbered consecutively 1 to 114, inclusive, as per a map recorded
in Book 90, Pages 1,2,3,and 4 of Miscellaneous Maps, in the office
of the Recorder of Orange County, California (“Tract 2964”); and
C. Whereas, Bank of America, (now know as “Bank of America NT&SA”), resigned as Declarant under the terms of the Declaration and relinquished its right under the Declaration to appoint members of the committee of Architecture in an instrument entitled “Relinquishment of the Right” dated December 15, 1998 and recorded on December 22, 1998, as Instrument Number 1998-00883875, in the office of the Recorder of Orange County, California; and
D. Whereas, pursuant to Article 3, Section 4 of the Declaration, a majority of the owners of the lots in Tract 2964 now have the right to elect and appoint the members of the Committee of Architecture,
WHEREFORE, IT IS AGREED AS FOLLOWS:
This document (hereafter called the “First Amendment”) amends the Declaration as follows:
1. The first paragraph following Article 3, Condition 17 which begins with the words “PROVIDED HOWEVER …” is amended to read as follows: “PROVIDED, HOWEVER, that said conditions and restrictions are to run with the land and shall be binding on all parties and all persons claiming under them until December 31, 2006, after which time said conditions and restrictions shall be automatically extended for successive twenty (20) year periods, absent the recording of an instrument signed by a majority of the then owners of the lots agreeing to a modification or termination of said conditions and restrictions.”
2. The second paragraph following Article 3, Condition 17 which begins with the words “PROVIDED FURTHER…” is amended to read as follows: “PROVIDED, FURTHER, that the foregoing conditions and/or restrictions shall operate as covenants running with the land, and any breach of such covenants may be enjoined, abated or remedied by appropriate proceedings by the owner of any of said lots, including the bona fide owner or holder of an agreement of sale covering any of the said lots, but by no other person or entity.”
3. Except as set forth herein, the terms and conditions of the Declaration shall remain unchanged and in full force and effect. In the event of a conflict between the terms of this First Amendment and the Declaration, the terms of the First Amendment shall control. This First Amendment may be executed in multiple counterparts, each of which shall constitute one and the same First Amendment.
IN WITNESS WHEREOF, the owners comprising a majority of owners of the lots subject to the Declaration have executed this First Amendment in counterpart by each signing the Certification of Individual Lot Owner attached hereto and made a part hereof.
DECLARATION OF ESTABLISHMENT OF RESTRICTIONS
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, a national banking association, having its principal place of business in San Francisco, California, sometimes hereinafter referred to as Declarant, hereby declares:
THAT the owner of all of Tract 2964 consisting of 114 lots, numbered 1 to 114, inclusive, in the City of San Clemente, County of Orange, State of California, as per map recorded in Book 90, Pages 1,2,3 and 4 of Miscellaneous Maps, Records of said County.
THAT said Bank of America National Trust and Savings Association desire to create, establish and place on said tract above described certain conditions, covenants, and restrictions hereinafter set forth.
THAT said, BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION hereby certifies and declares that there shall be and that there is hereby imposed upon said tract and all of the lots contained therein, the following conditions, restrictions, reservations, covenants and easements (hereinafter for brevity referred to as “conditions”) which shall apply to and shall bind the lots in said tract and each of them, and the owner or owners thereof and each of them and their Executors, Administrators, Heirs, Devisees, and Assigns and all of their successors in interest (and wherein hereafter benefits are created in favor of or burdens imposed upon said owner or owners, such benefits and burdens shall be deemed to run in favor of and shall be deemed to have been imposed upon the Executors, Administrators, Heirs, Devisees and all successors in interest of said owner or owners) that said conditions are imposed pursuant to a general plan for the improvement of said tract, and each and every lot therein contained, and are intended to be and are designed for a mutual benefit of the owners of the lots in said tract and shall inure to and pass with each and every lot therein. Said conditions are imposed upon each and every lot in said tract, as an obligation or charge against the some for the benefit of each and every other lot in said tract and the owner or owners thereof, and with the right of enforcement of said conditions and each of them vested in the owner or owners of any one or more of the other lots in said tract.
SAID CONDITIONS are as follows, to-wit:
1 – That said lots shall be used for no other purpose than to erect and maintain thereon a single-family residence with appurtenant outbuildings.
2 – That no professional occupation, business, industry, factory or commercial workshop shall be conducted on any of said lots; nor shall any condition be permitted thereon which may be, or become, an annoyance or nuisance to the neighborhood, or which shall cause or create any excessive smoke, dust, fumes, odors, or noise.
3 – That for the purpose of these restrictions, a “building site” shall be defined as a lot, as shown on the Record Map of said Tract No. 2964, or as a single holding or parcel which shall have a frontage or not less than 40 feet on a dedicated street, an average width of not less than 60 feet and a total area of not less than 6,000 square feet, and that no building shall be constructed on a any portion of said lots which is not a “building site”, in accordance with the above definition; except that Lots 40 and 41 may be divided into not more than two parcels each, having an area of not less than 6,000 square feet, subject to approve thereof by the hereinafter mentioned Committee of Architecture.
4 – That no building, fence, wall, gates or other structure shall be erected on said lots until and unless the plans and specifications thereof shall have been approved in writing by a Committee of Architecture to consist of three persons and to be appointed as herein provided. So long as BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION shall elect to appoint the said committee, it shall have the power to do so. However, Bank shall have the right of election not to appoint said Committee after 75% of the lots composing said Tract No. 2964 have been improved with residential buildings as permitted herein. Should Bank thereafter elect not to appoint the said committee it shall give notice to that effect, and such record shall impart notice of such election to all persons and shall be conclusive evidence thereof; and, in that event, a majority of the resident owners of lots in the said Tract No. 2964 shall have the power to appoint, in writing, a new Committee to take the place of that appointed by the Bank. The term “appointing power”, as used herein, shall be deemed to mean the Bank until and if it elects to abandon its powers of appointment as provided herein, and thereafter a majority of the said resident owners. Appointees shall hold their appointment at the pleasure of the appointing power. Full power is reserved hereby to the appointing power to remove any member so appointed and to make further appointments from time to time to fill any vacancies in the membership of the said Committee. The recordation of any instrument of appointment or removal executed by the said Bank, while it is exercising the appointing power, shall impart notice to all persons of the Committee therein set forth and shall be conclusive in favor of all such persons; and any such instrument of appointment or removal purporting to be executed by a majority of such resident owners while they are entitled to exercise the appointing power shall impart similar notice and shall be conclusive evidence in favor of all persons until cancelled or modified by some decree or instrument thereafter recorded. The decision of the said Committee upon any plans submitted to it shall be final, and no structure of any kind shall be erected upon any of said lots until plans thereof shall receive the written approval of the said Committee; provided, however, that if the said Bank elects to abandon its power of appointment, and if the majority of the said resident owners thereafter fail or neglect to appoint a new Committee, this provision of this paragraph shall not apply so long as the said resident owners fail or neglect to make such appointment. Whenever practicable, such approval shall be endorsed upon the plans and signed by a majority of the Committee. Such endorsement on any plans or specification filed as required by law shall constitute conclusive evidence of the approval of the said Committee. Any power or right vested by this paragraph in the said Bank may be exercised by its successor, or successors, in the same manner and with the same effect as the said Bank. Notwithstanding anything to the contrary herein contained, the right and power is hereby reserved to the Committee of Architecture, because if the irregular topography in said Tract No. 2964, reasonable variations in the building requirements and set back distances herein and hereafter established, provided said variations are, in the sole opinion of the Committee of Architecture, not injurious or undesirable to the neighborhood in which they occur, and the approval of the Committee of Architecture be given thereto in writing.
5 – That no building shall be moved or placed on any of said lots and any building or structure, including fences or walls constructed thereon, shall be constructed from new material and, if wood, shall be painted or stained with at least two (2) coats upon completion, unless specifically otherwise approved by the Committee of Architecture.
6 – That no garage, shack, trailer, outbuilding, tent building, structure, or shelter shall be erected, placed or maintained on any portion of said lots at any time prior to the erection of the main residential building in connection therewith, nor shall any trailer, tent, shelter, or other temporary structure be occupied as a residence or living quarters on said lots at any time.
7 – That no building shall be constructed on said lots nearer than six (6) feet to any side lot line, excepting that on Lots 10, 11, 12, 13, 19, 20, 21, 31, 32, 33, 34, 42, 55, 56, 57, 58, 59, 60, 84, and 85 of said Tract No. 2964 a building may be constructed not nearer than five (5) feet to any side line of the aforementioned lots, and excepting that on Lots 1 to 33, inclusive, 41 to 44, inclusive, and 60 to 114, inclusive, of said Tract 2964, a detached garage may be erected within two (2) feet of any side line of the latter mentioned lots only when the front thereof is 75 or more feet from the front line of the lot, provided that the said side line of the latter mentioned lots is not also a street frontage. The side yards specified herein shall exclude the outside wall or line of any fireplace or chimney used in connection with the principal residential building.
8 – That no building shall be erected on any of said lots clearer to the property line on a street frontage than the set-back line shown on the recorded map of said Tract 2964, excepting that, upon approval of the Committee of Architecture, a garage may be erected not closer than five (5) feet to a property line on a street frontage only if such garage shall be located in an embankment or slope so that two-thirds (2/3) of the total area of the side and rear walls thereof shall be below ground level.
9 – That no building or other structure erected on any of said lots shall exceed more than one (1) story or sixteen (16) feet in height above the highest point of the natural grade of the lot on the perimeter of this principal residential building, excepting that on Lots 29, 30, 31, 32, 42, 43, 44, 111, 112, 113, and 114 of said Tract No. 2964 any building may be not more than two (2) stories or 25 feet (25) feet in height above the highest point of the natural grade of the lot on the perimeter of the principal residential building. Natural grade of the lot is hereby defined as being the grade of the lot as of the time of the first sale thereof by the subdividers.
10 – that no fence, hedge, or wall having a height greater than six (6) feet shall be erected or maintained upon any of said lots, nor shall any wall, fence, or hedge situated within the front line set-back have a height greater than three (3) feet.
11 – That no residential building shall be erected on Lots 1 to 4, inclusive, 45 to 63, inclusive, 79, 80, 88, 89, 99, 100 and 105 to 110 inclusive, which contains less than 1350 square feet of enclosed ground floor space, excluding porches, patios, basements, cellars, and any garage incorporated into and forming a part of any such building. No residential building shall be erected on any of the other lots in said Tract 2964 which contain less than 1200 square feet of enclosed ground floor space, excluding porches, patios, basements, cellars, and any garage incorporated into and forming a part of any such building.
12 – That construction of any structure commenced on any of said lots shall be prosecuted with reasonable diligence until completion thereof and in no case shall the construction period exceed nine (9) months.
13 – That no stable, poultry house or yard, pigeon loft or house, or rabbit hutch or house, shall be constructed or maintained on any of said lots. No horses, cattle, cows, goats, sheep, rabbits, hares, or other animals, pigeons, pheasants, game birds, game or other birds, fowls or poultry shall be raised, kept or permitted upon any of said lots or any part thereof, except that dogs, cats, and small aviary or cage birds may be kept on any of said lots, provided that they are not kept, bred or raised thereon for commercial purposes or in an unreasonable manner.
14 – That no trash, rubbish, or debris of any kind or character shall ever be placed or permitted to accumulate upon any portion of any of said lots so as to render said premises unsanitary, unsightly, offensive, or detrimental to any other lot or lots in said Tract No. 2964, or to the occupant thereof.
15 – That no sign of any character, except one (1) ordinary “For Sale”, “For Rent”, or “Open for Inspection” sign shall be placed or maintained on any of said lots. Any such sign so placed or maintained on any of said lots shall have a surface area of not more than six (6) square feet. Should any sign or signs be erected or maintained upon any of said lots in violation of this provision, Declarant, or its duly authorized agent, may and they or either of them are hereby authorized to enter upon any of said lots to remove any and all such unauthorized signs.
16 – That the water drainage of the building site of any lot shall not be changed to make the water flow in any direction other than toward the street or streets upon which the particular lots faces.
17 – Anything herein contained to the contrary notwithstanding, Declarant shall have the right to permit maintenance of a temporary real estate office upon any lot or lots in the said Tract No. 2964 together with necessary and suitable advertising signs for the purpose of conducting the proper development, sale and management of the lots in said Tract No. 2964.
PROVIDED, HOWEVER, that said conditions and restrictions are to run with the land and shall be binding on all parties and all persons claiming under them until December 31, 1986 after which time said conditions and restrictions shall be automatically extended for a further period of twenty (20) years unless an instrument signed by a majority of the then owners of the lots has been recorded agreeing to change said conditions and restrictions in whole or in part or to terminate same.
PROVIDED, FURTHER, that a breach of any of the foregoing conditions and/or restrictions shall cause said premises to revert to the Declarant, its successors or assigns, each of whom respectively shall have the right of immediate re-entry upon said premises in the event of any such breach. And the foregoing conditions and/or restrictions shall operate as covenants running with the land, and a breach of any such covenants may be enjoined, abated or remedied by appropriate proceedings by Declarant, its successors or assigns, or by the owner of any of said lots, including the bonafide owner or holder of an agreement of sale covering any of said lots, but by no other person.
PROVIDED, FURTHER, that a breach of any of the foregoing conditions, or a re-entry by reason of any such breach, shall not defeat or render invalid the lien of any mortgage or deed of trust made in good faith, and for value, as to said premises, or any part thereof, but such conditions shall be binding upon and effective against any owner of said premises, whose title is acquired by foreclosure, Trustee’s Sale or otherwise.
PROVIDED, FURTHER, no delay or omission on the part of the Declarant its successors or assigns, or of any other subsequent owners of any of said lots, in exercising any right or power in the event of a breach of any of the foregoing conditions, shall be construed as a waiver thereof or acquiescence therein, but any breach of conditions occurring shall be construed as continuous in character, and Declarant, its successors or assigns, or any subsequent owners of any of said lots, at any time during the continuance thereof, or upon the occurrence of any subsequent event or breach of conditions, may exercise their every right or power.
PROVIDED, FURTHER, that nothing herein contained shall be construed to be a guaranty, warranty, or representation as to any present or future existence or non-existence of any zoning law, ordinance, or regulation of any Governmental or political organization or authority concerning or limiting the type or character of or the right to erect buildings or structures on any of said lots, or the use to which the same may be a part.
PROVIDED, FURTHER, that if any paragraph, section, sentence, clause, or phrase of the conditions herein contained shall be, or become, illegal, null or void for any reason, or shall be held by any court of competent jurisdiction to be illegal or against public policy, the remaining paragraphs, sections, sentence, clause or phrases herein contained shall not be affected thereby.
IN WITNESS WHEREOF, said BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION on this 20th day of September, 1956 caused this instrument to be executed by its officers hereby duly authorized.
RECORDED AT REQUEST OF: Orange Co. Title Co.; 3662, 305; October 1, 1956.
Notarized by Virginia LaCroix, September 28, 1956.