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Mr. Michael Vitousek
<br /> July 15, 2022
<br /> Page 4
<br /> The sample Warranty Deed and Reservation of Rights for Pualani Estates at Kona Phase
<br /> 3, which conveyed title to various lot owners expressly confirmed these disclosures,
<br /> acknowledgements, assumptions, encumbrances, and waivers, stating that
<br /> [b]y acquiring ownership of the Property hereby conveyed, the Grantee acknowledges
<br /> that the Grantee has become a member of the Community Association, has received,read
<br /> and understood the Community Declaration ... and acknowledges, agrees with, and
<br /> accepts the disclosures, conditions, covenants, easements, and reservation of rights
<br /> therein.... The Grantee acknowledges and agrees that the Community Declaration, the
<br /> Supplemental Declaration, the Limited Warranty and the Design guidelines contain
<br /> ...disclosures, covenants, undertakings, waivers of rights, disclaimers, limitations,
<br /> requirements and restrictions, all of which are binding upon Grantee and all owners of
<br /> Property within the Community. These provisions include...specific provisions
<br /> disclosing and authorizing continued extensive construction and sales activities within
<br /> and around the Community, which may result in, among other things, noise, dust,
<br /> vibration, and other nuisances, disturbances, annoyances, hazards, and effects, and
<br /> providing for acceptance by Grantee of any and all nuisance, inconvenience, irritation,
<br /> annoyance and risk of damage attributable to such activities, and further providing for the
<br /> agreement by Grantee to suffer and permit all actions and consequences incidental to
<br /> such ongoing construction and sales activities [and] specific provisions disclosing
<br /> environmental hazards or conditions, including without limitation, noise, dust, smoke,
<br /> soot, ash, odor, mold and mold spores, noxious vapors, surface water runoff,rock slide,
<br /> or other adverse environmental conditions and providing for Grantee's acceptance of the
<br /> possibility that such conditions may occur, Grantee's assumption of the risk of any
<br /> damage resulting from such occurrence, and the express waiver of all claims against
<br /> ...others arising out of or in connection with such conditions, including the right to seek
<br /> damages or the abatement or elimination of such conditions.
<br /> The CC&Rs for the Heights at Hualalai similarly disclosed that"[c]onstruction activity
<br /> by Declarant and other Lot Owners may continue within the Project, as well as on properties
<br /> adjacent to and in the vicinity of the Project. Such construction activity may result in the
<br /> transmission, discharge, or emission of surface water runoff, smoke, noise, dust, odors, noxious
<br /> vapors, chemicals, vibrations, and other annoyances, as well as pose certain risks of injury to an
<br /> Owner and the Owner's guests and visitors". See The Heights on Hualalai Declaration of
<br /> Covenants, Conditions and Restrictions ("Heights on Hualalai CC&Rs") § 17.1. Each lot owner
<br /> in this subdivision took their lot subject to an easement "for the transmission, discharge, or
<br /> emission of surface water runoff, smoke, noise, dust, noxious vapors, odors, chemicals,
<br /> vibrations, or other substances or nuisances over the Project which are created by or result from
<br /> such construction activities." Heights on Hualalai CC&Rs § 17.1.
<br /> Given the foregoing disclosures, acknowledgements, assumptions, encumbrances, and
<br /> waivers, which necessarily bind all lot owners within the Pualani Estates and the Heights at
<br /> Hualalai subdivisions, neither the community associations nor its lot owner members should be
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