Rose Lake Forest Property Owners Association

Osceola County, Michigan

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Recorded with the Register of Deeds
in and for Osceola County, Michigan
on 08/08/2014, at Liber 935, Page 204




Notice and Declaration of
Void Covenants and Usurpation of Franchise

This Notice and Declaration is made with regard to the various plats referenced herein-below, all of which Plats shall hereinafter be collectively referred to as The Forest, in Osceola County, Michigan; the restrictive covenants to which said Plats are subject; and the Rose Lake Forest Property Owners Association, Inc., a Michigan non-profit corporation which was created by, and given franchise subject to the said restrictive covenants.

Whereas, the plat of North Rose Lake Forest was recorded on 07/17/1972, at Plats 4, Page 86, in the records of the Register of Deeds, hereinafter referred to as "Registrar", in and for Osceola County, Michigan, and made subject to a Declaration of Restrictive Covenants, hereinafter referred to as "De Jure Covenants", and recorded with the Registrar on 07/17/1972 at Liber 298, Page 169; and

Whereas, 14 additional plats were subsequently filed with the above-named Registrar, each of them subject to the same De Jure Covenants, as detailed in the following chart:

For the chart of Plats and the recording information therefor, reference is made to Exhibit A, attached hereto, and made a part hereof.

Whereas, the Rose Lake Forest Property Owners Association, hereinafter referred to as "RLFPOA", is a non-profit Michigan corporation, which was originally incorporated by the developer of The Forest, pursuant to, and subject to the De Jure Covenants, and empowered by the developer with certain specific rights of franchise, subject to the De Jure Covenants, with regard to The Forest; and

Whereas, the De Jure Covenants include a provision which sets forth a detailed and specific procedure by which such De Jure Covenants may be amended, to-wit:

Article VIII, Section 1: Duration. The covenants and restrictions of this Declaration shall run with and bind the land and shall inure to the benefit of and be enforceable by The Association, or the owner of any land subject to this Declaration, their respective legal representatives, heirs, successors and assigns, for a term of twenty years from the date this Declaration is recorded, after which time said covenants shall be automatically extended for successive periods of ten (10) years unless an instrument signed by the then owners of two-thirds of the lots, subject to this Declaration, including all lots if any still owned by the Developer or its successors or assigns, has been recorded, agreeing to change said covenants and restrictions in whole or in part. Provided, however, that no such agreement to change shall be effective unless made and recorded three (3) years in advance of the effective date of such change, and unless written notice of the proposed agreement is sent to every owner at least ninety (90) days in advance of any action taken.

And Whereas, on 05/09/1991, a document entitled Declaration of Restrictive Covenants, hereinafter referred to as "De Facto Covenants #1" was recorded with the Registrar at Liber 537, Page 224, which purported to have been drafted by the RLFPOA, and was executed by only Leonard F. Michaels, acting as its President, and Robert E. Fontaine acting as its Director, and which purported to set forth an entirely new set of restrictive covenants for The Forest, claiming to replace and supersede the De Jure Covenants; and

Whereas, on 05/24/2001, a document entitled Declaration of Restrictive Covenants, hereinafter referred to as "De Facto Covenants #2" was recorded with the Registrar at Liber 705, Page 629, which purported to have been drafted by the RLFPOA, and was executed by only Gerald W. Cornell, acting as its President, and Kelli Hayden acting as its Secretary, and which purported to set forth an entirely new set of restrictive covenants for The Forest, claiming to replace and supersede the De Jure Covenants; and

Whereas, the De Facto Covenants #2 were attached to an instrument appearing to be an affidavit, executed on 05/24/2001 by the same Gerald W. Cornell, acting in the capacity of President of the RLFPOA, and recorded with the Registrar at Liber 705, Page 636, in which the Affiant made the following statements to which he is not certified to have sworn or affirmed, as the acknowledgment is insufficient to qualify the document as an affidavit:

"3. The attached Declaration of Restrictive Covenants were adopted by the requisite number of votes of the owners of lots in Rose Lake Forest and the related plats described in Exhibit "A" to the attached Declaration (collectively, the "Forest").

4. The owners of more than five hundred twenty (520) lots in the Forest voted at the meeting of the Association held on September 5, 1998, and its adjournments, to adopt the attached Declaration which were duly adopted by the Association on August 20, 2000."

And Whereas, a diligent search of the records of the Registrar was made, as evidenced by affidavit duly sworn and subscribed by Gregory Wood on 08/08/2014 and recorded with the Registrar at Liber 935, Page 203, and no evidence was found of any document(s) bearing the signatures of a two-thirds majority of owners of lots within The Forest as required by the De Jure Covenants; and

Whereas, at least one owner of lots within The Forest has come forward under oath, as evidenced by the same affidavit of Gregory Wood, mentioned hereinabove, who claims to have never received prior notice of intent to amend the De Jure Covenants, and to have never been provided with a prior copy of any proposed agreement as required by the De Jure Covenants; and

Whereas, the De Facto Covenants #1 at Article VI, and De Facto Covenants #2 at Article X, claim to become effective on the date of recording with the Registrar, in violation of the requirement by the De Jure Covenants that "no such agreement to change shall be effective unless made and recorded three (3) years in advance of the effective date of such change," and

Whereas, the De Facto Covenants #2, at Article II, Section 18, state the following:

Each property is subject to the By-laws imposed by the Association from time to time, and/or rules and regulations pertaining to the Forest. To the extent that the provisions of any of these documents are or may become inconsistent with each other, the provisions of the By-laws shall prevail over the Declaration (and the rules and regulations) and the Declaration shall prevail over the rules and regulations.

And Whereas, De Facto Covenants #1 and De Facto Covenants #2 and their associated By-laws each claim rights on behalf of RLFPOA to which RLFPOA was never granted or entitled by its franchise, and claims to place restrictions upon the landowners in The Forest to which said landowners did never lawfully consent; and

Whereas, the RLFPOA has adopted by-laws by which it operates, and within said by-laws the RLFPOA purports to have the authority to exercise and enforce various rules and regulations over the private property of landowners within The Forest which are not contained within the De Jure Covenants or either of the De Facto Covenants, without the need to amend the Covenants or record with the Registrar any notice whatsoever, and which rules and regulations, if enforced, would infringe upon the lawful rights of the various owners, and

Whereas, the RLFPOA has enforced, and/or attempted to enforce, some and/or all of said rules and regulations, through various means including but not limited to the sending of letters and the actual collection of fines, thereby causing an infringement of rights and a very real damage upon various owners of lots within The Forest, and

Whereas, the De Jure Covenants, in Article II, Section 5, state:

"Any owner of real property in plats of Rose Lake Forest shall have the right to prosecute any proceedings at law or in equity against any person or persons violating or attempting to violate any covenant contained herein, either to prevent him or them from doing so or to recover damages or other dues for such violations. Invalidation of any one of these covenants by judgment or court order shall in no way affect any other provisions, which shall remain in full force and effect."

And Whereas, the De Jure Covenants, in Article VIII, Section 3, state:

Enforcement. Enforcement of these covenants and restrictions shall be by any proceeding at law or in equity against any person or persons violating or attempting to violate any covenant or restriction, either to restrain violation or recover damages, and against the land to enforce any lien created by these covenants; and failure by the Association or any owner to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter.

And Whereas, this Declarant is trustee for the successor-in-interest of an owner of real property within The Forest;

Now Therefore:

I, Gregory Wood, the undersigned Declarant, by the power and authority vested in me as an owner of real property within The Forest, by Article II, Section 5, and Article VIII, Section 3 of the De Jure Covenants, do hereby declare, and give notice of the following:

  1. The above-referenced De Facto Covenants #1 and De Facto Covenants #2 are void ab initio.

  2. The By-laws for the RLFPOA, to every extent that they exceed the franchise of the RLFPOA as granted in the De Jure Covenants, are void ab initio.

  3. On behalf of Pine River Timber Co., the PRTC Trust, and myself, I hereby claim all the rights originally granted and reserved by the De Jure Covenants unto the property owners of The Forest, and also all the rights reserved therein by the Developer, and the successors in interest to the Developer.

  4. Notice is hereby given to RLFPOA that it has exceeded the bounds of its franchise and usurped powers it was never lawfully granted. Notice having been duly given, RLFPOA will henceforth be subject to all due penalties of law if it continues to exercise powers it does not lawfully possess under its de jure franchise, and it may be held liable for both civil and punitive damages.

  5. Notice is hereby given to officers of RLFPOA and all persons acting under color of law in their employ or agency, that any damages done by persons acting outside the scope of authority of the lawful franchise of RLFPOA may subject such actors to civil and/or criminal penalties in their own personal capacities.

In Witness whereof, the undersigned Declarant has executed this instrument on this 8th day of August, 2014.

Declarant:

______________________________
Gregory Wood
Individually, and as President,
Pine River Timber Co.
and as Trustee for PRTC Trust

State of Michigan )
) S.S.         Acknowledgment
County of Osceola )

Before me, the undersigned, a Notary Public, within and for said County and State, on this the 8th day of August, 2014, personally appeared Gregory Wood, to me known to be the identical person who executed the within and foregoing instrument and acknowledged to me that he executed the same as his free and voluntary act and deed, in his individual capacity, and as president of Pine River Timber Co., and as Trustee for PRTC Trust, for the uses and purposes therein set forth.

IN WITNESS WHEREOF, I have hereunto set my official signature and affixed my official seal the day and year last above written.

My commission expires: 2/7/2021

_____________________________________
Ellen K. Grubaugh, Notary Public

Notary Public in and for County of Osceola County, State of Michigan

Prepared by: Gregory Wood, General delivery, Lynnville, Tennessee




Exhibit A

Plat and Recording Reference Table
Rose Lake Forest

Tax Plat Plat Covenants
L/P Date L/P Date Notes
1 525 Rose Lake Forest 5/12 01/31/1974 310/526
310/483
310/533
310/534
02/01/1974
01/31/1974
02/01/1974
02/01/1974
General
Restrictions for Septic (see below)
Req. Septic permit (see 298/176)
Restrict outdoor lighting (see 298/256)
2 430 North Rose Lake Forest 4/86 07/17/1972 298/169
298/176
298/256
07/17/1972
07/17/1972
07/21/1972
General
Req. Septic permit (see below)
Restrict outdoor lighting (see below)
3 200 East Rose Lake Forest 5/15 01/31/1974 310/535
310/484
310/542
310/543
02/01/1974
01/31/1974
02/01/1974
02/01/1974
General
Restrictions for Septic (see below)
Restrict outdoor lighting (see 298/256)
Req. Septic permit (see 298/176)
4 730 West Rose Lake Forest 5/18 01/31/1974 310/544
310/485
310/551
310/552
02/01/1974
01/31/1974
02/01/1974
02/01/1974
General
Restrictions for Septic (see below)
Restrict outdoor lighting (see 298/256)
Req. Septic permit (see 298/176)
5 450 Northwest Rose Lake Forest 5/21 01/31/1974 310/553
310/560
310/561
310/486
02/01/1974
01/31/1974
02/01/1974
02/01/1974
General
Restrict outdoor lighting (see 298/256)
Req. Septic permit (see 298/176)
Health Regs for indiv. Lots
6 610 South Rose Lake Forest 297/300 05/23/1975 321/225
321/221
321/223
321/224
05/23/1975
05/23/1975
05/23/1975
05/23/1975
General
Health Regs for indiv. Lots
Addl. Bldg and Use Restrictions
Restrict outdoor lighting (see 298/256)
7 620 Southwest Rose Lake Forest 1/317
Amd 1/342
03/19/1979
11/30/1995
356/411 03/19/1979 General. Includes all addl restrictions
8 550 Rose Lake Forest Shores 1/301 04/12/1976 327/406
327/435
04/12/1976
04/12/1976
General. Includes all addl restrictions
Health Regs for indiv. Lots
9 530 Rose Lake Forest Beach 1/329 05/03/1979 357/577 05/03/1979 General. Includes all addl restrictions
10 535 Rose Lake Forest Hills 1/319 03/26/1979 356/527 03/26/1979 General. Includes all addl restrictions
11 440 North Rose Lake Forest Hills 1/315 03/19/1979 356/403 03/19/1979 General. Includes all addl restrictions
12 541 Rose Lake Forest Knoll#1 1/321 03/26/1979 356/535 03/26/1979 General. Includes all addl restrictions
13 542 Rose Lake Forest Knoll#2 1/323 03/26/1979 356/543 03/26/1979 General. Includes all addl restrictions
14 560 Rose Lake Forest Valley 1/327 04/04/1979 357/39 04/04/1979 General. Includes all addl restrictions
15 555 Rose Lake Forest Slopes 1/325 04/04/1979 357/31 04/04/1979 General. Includes all addl restrictions



This website provided as a free service by Gregory Wood, who is a member of RLFPOA, and trustee for the successor in interest to the original developer.

The developer still has a few choice parcels available for sale within Rose Lake Forest. For a listing of what's available, please visit www.nwmichiganland.com

Copyright 2014, by Gregory Wood, All rights reserved.