20090440 Ver 1_More Info Received_20091007

M
Needham
Environmental Inc.
Robert N. Needham, PWS Chip Jackson Tom Gulley, NCLSS#1256
9100 Charlestowne Rd. SE Office/Fax [phone] P.O. Box 960
Winnebow, NC 28479 [e-mail] Wilmington, NC 28402
Office/Fax [phone] Office/Fax [phone]
[e-mail] [e-mail]
October 2, 2009
Dave Bailey
Wilmington Regulatory Field Office
69 Darlington Ave.
Wilmington, NC 28403
RE: The Villas at Jackson Court, SAW-2008-02087 & NCDWQ Project# 09-0440, Onslow
County, North Carolina
Dear Dave:
Enclosed is a copy of the draft Restrictive Covenants for the above-mentioned project. Article
X.15 of the enclosed document outlines the restrictions in wetland areas. I have also attached
"Exhibit A", which will be the recorded as `The Villas @ Jackson Court Preservation Map".
This map will show the preservation area as the wetlands delineation survey minus the 0.32 acres
of wetland fill. It is my understanding this is the only information needed to continue with the
permitting process.
Please contact me if you have any questions at [phone], [phone], or by e-mail at
Sincerely,

J. Tom Gulley, Jr.
North Carolina Soil Scientist # 1256
cc: Joanne Steenhuis
Bill Jones
O C T
.19
By.
.-.--®? ?-

(11? ? 0i
STATE OF NORTH CAROLINA
COUNTY OF PENDER
DECLARATION OF COVENANTS,
CONDITIONS AND RESTRICTIONS
OF THE VILLAS AT JACKSON COURT
THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
FOR_Tltf = Vil.,_i?s (& L?.(as may be amended or supplemented as set forth herein,
"Declaration") is made this day of September, 2009 by Hampstead Rentals, LLC,
a North Carolina - Limited Liability Company, whose address is
0 (the "Declarant").
WITNESSETH:
A. Declarant is the owner and developer of certain real estate in Onslow
County, North Carolina, and more particularly described on Exhibit A attached hereto
and made a part hereof (the "Property" or "Subdivision"); and
B. Declarant is developing the Property known as "The Villas at Jackson
Court" by subdividing it into "Lots" that are to be used for residential purposes as well as
common real estate and improvements that are to be owned by a homeowners
association to which the Owner of a Lot must belong and pay lien-supported
maintenance assessments; and
C. At the time the completion of The Villas at Jackson Court, the entire
Property, excluding the Lots and dedicated streets, if any, shall be conveyed without
cost or charge to the Association.
Out 0 ?009
[Bill, I HAVE A QUESTION ABOUT THE OFFSITE SEPTIC SYSIffi_'I&-e----°---
THEREFORE, the Declarant hereby declares that all of the Lots and Common
Areas (defined below) located within the Subdivision are held and shall be held,
conveyed, hypothecated or encumbered, leased, rented, used, occupied and improved,
subject to provisions of The North Carolina Planned Community Act under North
Carolina General Statute 47F and the following covenants, conditions and restrictions,
all of which are established and agreed upon for the purpose of enhancing and
protecting the value, desirability and attractiveness of the Subdivision as a whole and of
each of said Lots. All of these restrictions shall run with the land and shall be binding
upon the Declarant and upon the parties having or acquiring any right, title or interest,
legal or equitable in and to the Property or any part or parts thereof subject to such
restrictions, and shall inure to the benefit of the Declarant and every one of the Declarant's
successors in title to any of the Property.
ARTICLE I
DEFINITIONS
ARTICLE I.1 "Annual Organizational Board Meeting" means the annual
organizational board meeting of the Board, which shall take place immediately after
each Annual Meeting of the Members.
ARTICLE 1.2 "Annual Meeting" means the annual meeting of the Members
held in Onslow County, North Carolina, within the last quarter of each calendar year,
upon proper notice, at a date, time and at a place from time to time designated by the
Board. The first Annual Meeting of the Members shall be held within one (1) year from
the date of incorporation on such date as the initial Board shall determine.
ARTICLE 1.3 "Articles" or "Articles of Incorporation" shall mean those articles,
filed with the Secretary of State of North Carolina, incorporating The Village at Jackson
Court Homeowners Association, Inc., as a nonprofit corporation under the provisions of
North Carolina State law, as the same may be amended from time to time.
ARTICLE 1.4 "Assessments" means Regular Assessments, Special
Assessments, Working Capital Assessments, Individual Assessments and Fine
Assessments.
ARTICLE 1.5 - "Association" shall mean and refer to The Village at Jackson
Court HOMEOWNERS ASSOCIATION, INC., to be formed as a non-profit corporation,
its successors and assigns."Board" or "Board of Directors" shall mean and refer to the
Board of Directors of the Association.
ARTICLE 1.6 "Bylaws" shall mean the Bylaws of the Association, as the same
may be amended from time to time.
ARTICLE 1.7 "Board of Directors" shall mean and refer to the Board of Directors
of the Association
ARTICLE 1.8 Class A Members" shall mean as defined in Section 4.5.1 below.
ARTICLE 1.7 "Class B Members" shall mean as defined in Section 4.5.2
below.
ARTICLE 1.8 "Constituent Documents" shall mean the Declaration, the
Bylaws, the Articles of Incorporation, and the Rules and Regulations, if any, and any
other basic documents used to create and govern the Subdivision.
ARTICLE 1.9 "Common Areas" shall mean all the real estate (including
retention ponds, storm drainage improvements, entrance signage, streets (including any
dedicated streets prior to their acceptance for public maintenance) and all landscaping
and other improvements thereon) owned by the Association for the common use and
enjoyment of the Owners.
ARTICLE I.10 "Common Expenses" shall mean, refer to, and include all
charges, costs and expenses incurred by the Association for and in connection with the
administration of the Subdivision, including, without limitation thereof, operation of the
Subdivision, maintenance, repair, replacement and restoration (to the extent not covered
by insurance) of the Common Areas; the costs of any additions and alterations thereto;
all labor, services, common utilities, materials, supplies, and equipment therefor; all
liability for loss or damage arising out of or in connection with the Common Areas and
their use; all premiums for hazard, liability and other insurance with respect to the
Subdivision; all costs incurred in acquiring a Lot pursuant to judicial sale; and all
administrative, accounting, legal, and managerial expenses. "Common Expenses" shall
also include amounts incurred in replacing, or substantially repairing, capital
improvements within the Common Areas of the Subdivision, including, but not limited to
private road resurfacing if said subdivision streets are not accepted for maintenance by
the North Carolina Department of Transportation. "Common Expenses" shall also
include all reserve funds or other funds established by the Association. "Common
Expenses" shall be construed broadly.
ARTICLE I.11 "Declarant" shall mean and refer to Hampstead Rentals, LLC, a
North Carolina Limited Liability Company, its successors and assigns as a Declarant.
ARTICLE 1.12 "Default" shall mean any violation or breach of, or any failure to
comply with, the Restrictions, this Declaration or any other Constituent Documents.
ARTICLE I.13 "Development Period" means the period commencing on the
date on which this Declaration is recorded in the Onslow County Register of Deeds and
terminating on the earlier to occur of (i) when Declarant no longer owns a Lot in the
Subdivision; (ii) the date that Declarant relinquishes in writing Declarant's right to appoint
Directors; or (iii) the occurrence of the date ten (10) years from the date of recording the
Declaration, renewable for an additional ten (10) year period with the consent of a
majority of Lot Owners other than the Declarant.
ARTICLE I.14 "Dwelling Unit" shall mean and refer to the individual family living
unit on an individual Lot.
ARTICLE I.15 "Fine Assessment" means the charge established by Section
5.5.2 of this Declaration.
ARTICLE I.16 "Individual Assessment" means the charge established by
Section 5.4 of this Declaration.
ARTICLE I.17 "Lot" shall mean and refer to any parcel of land designated on
the Plat upon which a Dwelling Unit has been or is to be constructed. The Declarant has
initially created seventeen (17) Lots in the Subdivision and has the right to establish
additional Lots in accordance with the terms of this Declaration.
ARTICLE I.18 "Member" shall mean and refer to all those Owners who are
Members of the Association as provided in Article IV below.
ARTICLE I.19 "Owner" shall mean and refer to the record owner, including
Declarant, whether one or more persons or entities, of a fee simple title to any Lot
located within the Subdivision.
ARTICLE 1.20 "Plat" shall mean and refer to the record plat of the Subdivision
recorded by Declarant, as the same may be amended or supplemented by Declarant
from time to time.
ARTICLE 1.21 "Planned Community Act" shall mean and refer to the North
Carolina Planned Community Act, currently codified as Chapter 47F of the North
Carolina General Statutes, as the same may be amended from time to time.
ARTICLE 1.22 "Propert X" or "Subdivision" shall mean and refer to that certain
real estate described in Exhibit A and all other real estate that may be annexed into this
Declaration and the Association by the Declarant.
ARTICLE 1.23 "Regular Assessment" means the charge established by Article V
of this Declaration.
ARTICLE 1.24 "Resident" shall mean and refer to any person, not an Owner,
living in the Owner's Dwelling Unit, including, but not limited to, temporary guests and
Tenants.
ARTICLE 1.25 "Restrictions" shall mean all covenants, conditions, restrictions,
easements, charges, liens and other obligations provided for in this Declaration,
including, without limitation, all notices, rules and regulations issued in accordance with
this Declaration.
ARTICLE 1.26 "Roadway Declaration" shall mean that certain Declaration of
Roadway Easements and Restrictions recorded in Book , Page of the
Onslow County Public Registry, as the same may from time to time be amended in the
manner therein.
[BILL ASK ME ABOUT THIS-RAY]
ARTICLE 1.27 "Rules and Regulations" shall mean and include the rules
and regulations made from time to time by the Board of Directors as provided in Section
4.3 below.
ARTICLE 1.28 "Special Assessment" means the charge established by Section
5.2 of this Declaration.
ARTICLE 1.29 "Tenant" means any person occupying any Lot pursuant to a
written or oral lease agreement with the Owner thereof or with any other person or entity
claiming under the Owner.
ARTICLE 1.30 "Working Capital Assessment" means the charge established by
Section 5.3 of this Declaration.
When applicable for the sense of this instrument, the singular should be
read as including the plural and the male, female, and neuter pronouns and
adjectives should be read as interchangeable.
ARTICLE II
PROPERTY SUBJECT TO THIS DECLARATION
The Property, each portion thereof, and all Dwelling Units thereon shall be
held, transferred, sold, conveyed, leased, mortgage and occupied subject to the
terms, provisions, covenants and conditions of this Declaration.
ARTICLE III
PROPERTY RIGHTS IN COMMON AREAS
ARTICLE 111.1 Owner's Easements of Enjoyment. Except as herein
otherwise provided, each Owner shall have a right and easement of enjoyment in
and to the Common Areas, which shall be appurtenant to and shall pass with the
title to his Lot. Each Tenant shall have a non-transferable right to use and enjoy
the Common Areas, if any, which right shall terminate when such person ceases
to have the status of a Tenant. Such rights and privileges shall be subject,
however, to the following:
ARTICLE 111.1.1 The right of the Board to suspend the right of any
Owner or the privilege of any Resident to use such of the Common Areas
that are recreational in nature as determined by the Board for any infraction
of the Rules and Regulations relating to the Common Areas for a period not
to exceed sixty (60) days for each such infraction, or for any non-payment
or delinquency of the Assessments against such Owner's Lot for a period
not to exceed the period of such non-payment or delinquency;
ARTICLE 111.1.2 The right of the Board to adopt and enforce and
from time to time amend reasonable limitations upon use and Rules and
Regulations pertaining to the use of the Common Areas, including
regulations limiting guests of Owners and Tenants who may use the
Common Areas at any one time;
ARTICLE 111.1.3 All applicable provisions of valid easements and/or
agreements of the Association relating to the Common Areas, including,
without limitation, the Recreational Facilities Easement Agreement and the
Roadway Declaration;
ARTICLE 111.1.4 The right of the Association to grant permits,
licenses and public or private easements over Common Areas for utilities,
roads and other purposes reasonably necessary or useful for the proper
maintenance or operation of the Property; or
ARTICLE 111.1.5 The right of Declarant or the Association to
dedicate or convey portions of the Common Areas to applicable
governmental authorities for park purposes.
ARTICLE 111.2 Extension of Use. Any Owner may extend his right of
enjoyment to the Common Areas to the immediate and/or extended members of
his family, his Tenants, guests or contract purchasers of the Owner's Lot.
ARTICLE 111.3 Title to Common Areas. The Declarant shall convey by deed
all Common Areas to the Association in fee simple absolute after the final platting
of all Lots in the Subdivision. Any such conveyance shall be subject to taxes for
the year of conveyance, and to restrictions, conditions, limitations and easements
of record.
ARTICLE 111.4 Use of Common Areas by Declarant. In addition to the
specific rights and easements reserved herein, Declarant and its affiliates and
associates shall have the same rights of use and enjoyment of the Common Areas
as the Class A Members during the Development Period, and shall have the same
right to use Common Areas for promotional, sales and similar purposes until all of
the Lots have been sold.
ARTICLE IV
HOMEOWNERS ASSOCIATION
ARTICLE IVA Homeowners Association. There is has been created a
North Carolina non-profit corporation, known as The Villas at Jackson Court
Homeowners Association, Inc., which shall be responsible for the maintenance,
management and control of the Common Areas and upon each Lot and Dwelling
Unit as more specifically set forth in this Declaration.
ARTICLE IV.2 Board of Directors and Officers. The Board of Directors,
and such officers as the may elected or appointed in accordance with the Articles
or the Bylaws, shall conduct the affairs of the Association. The Board of Directors
may also appoint committees and managers or other employees and agents who
shall, subject to the general direction of the Board of Directors, be responsible for
the day-to-day operation of the Association.
ARTICLE IV.3 Rules and Regulations. By a majority vote of the Board of
Directors, the Association may, from time to time adopt, amend and repeal Rules
and Regulations with respect to all aspects of the Association's rights, activities
and duties under this Declaration. The Rules and Regulations may, without
limitation, govern use of the Subdivision, including prohibiting, restricting or
imposing charges for the use of any portion of the Subdivision by Owners,
Residents or others, interpret this Declaration or establish procedures for
operation of the Association or the administration of this Declaration; provided,
however, that the Rules and Regulations shall not be inconsistent with this
Declaration, the Articles, Bylaws or the terms of the Roadway Declaration. A copy
of the Rules and Regulations, as they may from time to time be adopted, amended
or repealed, shall be maintained in the office of the Association and shall be
available to each Owner upon request.
ARTICLE IVA Membership of Association. Every Owner of a Lot shall be a
Member of the Association. Such Owner and Member shall abide by the
Association's Rules and Regulations, shall pay the Assessments provided for in
this Declaration, when due, and shall comply with decisions of the Association's
governing body. Conveyance of fee simple title to a Lot automatically transfers
membership in the Association without necessity of further documents.
Membership shall be appurtenant to and may not be separated from ownership of
any Lot that is subject to Assessment.
ARTICLE IV.5 Classes of Membership. The Association shall have two (2)
classes of Membership:
ARTICLE IV.5.1 Class A Members. Every person, group of
persons, or entity which is a record Owner of a fee interest in any Lot upon
which a Dwelling Unit has been erected within the Property, shall
automatically be a Class A Member of the Association except the Declarant
during the Development Period; provided, however, that any such person,
group of persons or entity who holds such interest solely as security for the
performance of an obligation shall not be a Member. A Class A Membership
shall be appurtenant to and may not be separated from ownership of any
Lot upon which a Dwelling Unit has been constructed that is subject to
Assessment. Class A Members shall be entitled to one (1) vote for each Lot
in which they hold the interest required for membership. In the event that
more than one person, group of persons or entity is the record Owner of a
fee interest in any Lot, then the vote for the membership appurtenant to
such Lot portion shall be exercised as they among themselves determine,
but in no event shall more than one (1) vote be cast with respect to any Lot.
In the event agreement is not reached, the vote attributable to such Lot shall
not be cast.
ARTICLE IV.5.2 Class B Members. The Class B Member during the
Development Period shall be the Declarant. The Class B Membership shall
cease and be converted to Class A membership upon the expiration of the
Development Period.
ARTICLE IV.5.3 Voting. Each Member shall have one vote with
respect to each Lot owned by such Member, but a Class A Member shall not
be entitled to exercise any vote until the expiration of the Development
Period.
ARTICLE IV.6 Maintenance Obligations of the Association. The
Association, at its expense, shall maintain, operate and keep in good repair,
unless such obligations are assumed by any municipal or governmental agency
having jurisdiction thereof, the Common Areas and all improvements located
thereon for the common benefit of the Subdivision. This shall include, without
limitation, the maintenance, repair, replacement and painting of the following
landscaping and improvements (to the extent that such improvements or
landscaping are located upon or constitute Common Areas): (a) all private
roadways, driveways, pavement, sidewalks, walkways and uncovered parking
spaces; (b) all lawns, trees, grass and landscape areas, shrubs and fences, except
as otherwise set forth hereinbelow; (c) all conduits, ducts, utility pipes, plumbing,
wiring and other facilities which are part of or located in, or for the furnishing of
utility services to, the Common Areas and which are not for the exclusive use of a
single Dwelling Unit.
The Association shall make the determination as to when maintenance,
repair, replacement and care shall be done, and its determination shall be binding.
Declarant shall have the right to employ a manager to oversee and implement the
Association's maintenance obligations, and any such management fees incurred
thereby shall be paid by the Association. The Association shall also perform the
other duties prescribed by this instrument or the Association's Rules and
Regulations.
ARTICLE IV.7 Maintenance Obligation of the Lot Owners. The
responsibilities of each Lot Owner shall include:
ARTICLE IV.7.1 To clean, maintain, keep in good order, repair and
replace at his or her expense all portions of his or her Lot and Dwelling Unit.
Any repair, replacement and maintenance work to be done by an Owner
must comply with any Rules and Regulations of the Association including
architectural control and visual harmony.
ARTICLE IV.7.2 To perform his responsibilities in such manner so
as not unreasonably to disturb other persons residing within the
Subdivision.
ARTICLE IV.7.3 Not to paint or otherwise alter, decorate or change
the appearance of any exterior portion of his Dwelling Unit, without the
written consent of the Association.
ARTICLE IV.7.4 Not to impair the use of any easement without first
obtaining the written consents of the Association and of the Owner or
Owners for whose benefit such easements exists.
ARTICLE IV.7.5 Each Lot Owner shall be deemed to agree by
acceptance of delivery of a deed to a Lot, to repair and/or replace at his or
her expense all portions of the Common Areas which may be damaged or
destroyed by reason of his or her own intentional or negligent act or
omission, or by the intentional or negligent act or omission of any invitee,
tenant, licensee family member, including, but not limited to any repairs
necessary which result from damage incurred by pets or vehicles owned by
the Lot Owner, or owned by any guest, invitee, Tenant or licensee of such
Lot Owner. To the extent that any Common Area is damaged as an
insurable loss and the proceeds from the Association's insurance policy are
utilized to pay for the loss, the Owner shall be responsible for payment of
the deductible as an Individual Assessment in accordance with Section 5.4
and Section 7.7 below.
ARTICLE IV.8 Construction Defects. The obligations of the Association
and of Owners to repair, maintain and replace the portions of the Subdivision for
which they are respectively responsible shall not be limited, discharged or
unreasonably postponed by reason of the fact that any maintenance, repair or
replacement may be necessary to cure any latent or patent defects in materials or
workmanship in the construction of the project. The undertaking of repair,
maintenance or replacement by the Association or Owners shall not constitute a
waiver of any rights against any warrantor but such rights shall be specifically
reserved. Likewise, this Section 4.8 is not intended to work for the benefit of the
person or entity responsible for the construction defect. Also, performance by
Association may be delayed if Association does not have the means or the funds
to repair the defect or if by repairing the defect, Association would be
compromising the right to sue to have the defect corrected and/or to collect
damages caused by the defect.
ARTICLE IV.9 Effect of Insurance or Construction Guarantees.
Notwithstanding the fact that the Association and/or any Lot Owner may be
entitled to the benefit of any guarantee of material and workmanship furnished by
any construction trade responsible for any construction defects, or to benefits
under any policies of insurance providing coverage for loss or damage for which
they are respectively responsible, the existence of construction guarantee or
insurance coverage shall not excuse any unreasonable delay by the Association
or any Lot Owner in performing his obligation hereunder. Likewise, this Section
4.9 is not intended to work for the benefit of the person or entity responsible for
the construction defect. Also, performance by Association may be delayed if
Association does not have the means or the funds to repair the defect or if, by
repairing the defect, the Association would be compromising the right to sue to
have the defect corrected and/or to collect damages caused by the defect.
ARTICLE V
COVENANT FOR ASSESSMENTS
ARTICLE V.1 Regular Assessments. Regular Assessments for the
payment of the Common Expenses shall be made in the manner provided herein,
and in the manner provided in the Bylaws. The Regular Assessment is
established for the benefit and use of the Association and shall be used in
covering all of the Common Expenses.
ARTICLE V.2 BILL ASK ME ABOUT ASSESSMENTS
ARTICLE V.3 Special Assessment. In addition to levying Regular
Assessments, and to the extent that the reserve fund is insufficient, the Board of
Directors may levy Special Assessments to construct, structurally alter, or replace
improvements which are a part of the Common Areas, provided that funds shall
not be assessed for any capital improvement in excess of Twenty Five Thousand
and 00/100 Dollars ($25,000.00) for any one item or in excess of Fifty Thousand
and 00/100 Dollars ($50,000.00) in the aggregate in any one calendar year ("Capital
Expenditure Limit") without the prior written consent of two-thirds (2/3) of the
votes of each Class of Members who are voting either in person or by proxy at a
meeting duly called for such purpose or unless expressly stated in the annual
budget. The Board of Directors shall have the authority to adjust the Capital
Expenditure Limit annually to account for inflation, which adjustment shall be
effective each January (hereinafter referred to as the "Adjustment Date")
commencing January 1 of the next year following the year during which the sale of
the first Lot by Declarant. Until the expiration of the Development Period or the
date on which Declarant no longer owns a Lot, whichever is earlier, Declar.Int shall
be one of the consenting Members, or the capital improvement shall not be made.
The Board of Directors shall calculate each Lot's proportionate share of the
Special Assessment for the capital improvements, and shall give the Lot Owner(s)
written notice of the proportionate share and of the date(s) that the Special
Assessment is due and payable. Notwithstanding the foregoing, Declarant shall
have no obligations to pay any Special Assessment with respect to any Lot owned
by it unless there is a Dwelling Unit located upon the Lot that is occupied as a
residence.
ARTICLE VA Working Capital Assessment. Upon the initial transfer of
record of the Lot from the Declarant (or successor declarant or designated
declarant) to the Lot Owner (other than a successor declarant or designated
declarant), the purchaser is required to pay a sum equal to two (2) full months of
the Regular Assessment due on his or her Lot as his or her initial contribution to
the working capital of the Association. This sum is not an advance payment of the
monthly Regular Assessment; rather the sum is allocated to a working capital
fund to meet unforeseen expenditures and operating expenses or to purchase any
additional equipment or services. While the Declarant is in control of the
Association, it cannot use any of the working capital funds to defray its expenses,
reserve contributions, or construction costs. When control of the Association is
transferred to the Lot Owners, the working capital fund shall be transferred to the
Association for deposit to a segregated fund. After control of the Association is
transferred to the Lot Owners the Declarant shall be responsible to collect the
initial contribution to the working capital account and forward such funds to the
Association. Additionally, at the closing, each purchaser of a Lot is required to
pay a pro-rata share of the Regular Assessment due in the month of closing.
ARTICLE V.5 Individual Assessment. In the event that the need for
maintenance, repair or replacement of any improvement on the Property, for which
the Association has the maintenance, repair and/or replacement obligation, is
caused through the willful or negligent act of an Owner, his family, his pet(s),
Resident, the cost of such maintenance, repairs or replacements shall be paid by
such Owner. The Board shall have the maintenance, repair or replacement done
and the cost thereof shall be provided by the Board to said Owner and shall be
paid by said Owner within thirty (30) days thereafter, unless an earlier date is
otherwise set forth herein.
A
ARTICLE V.6 Date of Commencement of Assessments; Due Dates;
Determination of Regular Assessments; Fine Assessments.
ARTICLE V.6.1 The monthly Regular Assessment provided for
herein shall commence as to each Owner of a Lot, except Declarant, on the
first day following the initial conveyance of the Dwelling Unit to the Owner
and shall be adjusted according to the number of days remaining in the
month. The Declarant, its successors and assigns, shall not be required to
pay the Regular Assessment for any Lot which it owns until such time as
Declarant transfers the Lot to a third party. The Board of Directors shall fix
the amount of the monthly Regular Assessment to be paid by each Class A
Member against each Lot at the beginning of each calendar year. Written
notice of the monthly Regular Assessment shall be sent to every Class A
Member subject thereto. The Board of Directors shall establish the due
dates.
ARTICLE V.6.2 The Board of Directors, or an adjudicatory panel
established by the Board of Directors, may levy a reasonable Fine
Assessment, as a fine or penalty for violation of this Declaration, all in
accordance with the Planned Community Act. A lien may be filed for this
Fine Assessment and this Fine Assessment may be enforced by foreclosure
and otherwise treated as a Regular Assessment.
ARTICLE V.6.3 If the Association is paying the water and/or sewer
bill(s) for the. Subdivision or any Lot Owner within the Subdivision, the
Association may assess each Lot Owner benefited for its share of the water
and/or sewer bill(s). Each Lot Owner shall bear an equal share of the bill,
but the Association can assess an extra amount against a Lot Owner to
recover the cost of any extraordinary amount of water used by that Lot
Owner. "Extraordinary" shall be as determined by the discretion by the
Board of Directors. The Assessment for water and sewer shall be part of
the Regular Assessment and shall be considered a Common Expense.
ARTICLE V.6.4 Both Regular and Special Assessments for a Lot
Owner shall be determined by the Association based upon the proportion
that each Lot bears to the aggregate number of Lots located on the
Property, except those owned by Declarant which are not assessed in
accordance with Section 5.5.1 above. The Association's governing body
may, at its discretion, waive the Regular Assessment for any year or part of
a year for any Lot not occupied as a residence.
ARTICLE V.7 Billing. The Association shall inform each Lot Owner of the
amount of the total Regular Assessment due from the Owner of that particular Lot.
This Regular Assessment may be paid in monthly installments or as otherwise
required by the Association. The Owner of each Lot must pay his Lot's required
Regular Assessment in advance on the first calendar day of each month, unless
the Association otherwise directs. Payment is to be made to such person at such
an address as Association determines. Special Assessments are due thirty (30)
days after the bill for the Special Assessment has been mailed or otherwise sent
out by Association, unless the Association otherwise directs. The Owners of the
initial Lots in the Subdivision, except Declarant, shall be obligated to begin paying
the Regular Assessment as of the first day of the initial conveyance of the Lot
from Declarant to the Owner. If the Subdivision is expanded and additional Lots
are brought into the Subdivision during a given Assessment year, those additional
Lots shall begin paying the Regular Assessment on the first day of the initial
conveyance of the Lot from Declarant to the Owner.
ARTICLE V.8 Common Surplus. If the Regular Assessment collected in
any given year is in excess of the actual Common Expenses for that year, the
Board may, at its sole discretion (a) return each Owner's share of the Common
Surplus; (b) credit each Owner's share of the Common Surplus to each Owner's
payment as for the Regular Assessment for the following year; or (c) apply the
Common Surplus to the reserve.
ARTICLE V.9 Assessment Certificate. The Association shall, upon
demand, at any reasonable time, furnish to any Owner liable for Assessments a
certificate in writing signed by an Officer or other authorized agent of the
Association, setting forth the status of said Assessments; i.e., "current", and if not
current, "delinquent" and the amount due. Such certificate shall be conclusive
evidence of the payment of any Assessment therein stated to have been paid. A
reasonable charge to cover labor and materials may be made in advance by the
Association for each certificate.
ARTICLE V.10 Books and Records of the Association. The Association
shall keep full and correct books of account. The Association shall make available
to all Lot Owners and the holders of all first mortgages on Lots, current copies of
the books, records and financial statements of the Association upon reasonable
request during normal business hours. All funds collected by the Association
shall be held and expended solely for the purposes designated by this Declaration
and shall be deemed to be held for the use, benefit and account of the Association
and all of the Lot Owners. All books and records must be kept in accordance with
good accounting procedures and must be reviewed at least once a year by an
independent accounting firm.
ARTICLE V.11 Non-Payment of Assessment. Any Assessments levied
pursuant to these covenants which is not paid on the date when due shall be
delinquent and shall, together with such interest and other costs as set out
elsewhere in this Declaration, thereupon become a continuing lien upon the Lot
which shall bind the Lot in the hands of the then Owner and the Owner's
successors and assigns.
If the Assessment is not paid within thirty (30) days after the due date, the
Assessment shall bear interest at a reasonable rate of ten percent (10%) per year
or at such other reasonable rate set by Association in its minutes, not to exceed
the maximum amount allowed by law, and the Association may bring an action at
law against the Owner personally obligated to pay the same and/or foreclose the
lien against the Lot, in either of which events interest, costs and reasonable
attorneys' fees shall be added to the amount of each Assessment. No Owner may
waive or otherwise escape liability for the Assessments by non-use or waiver of
use of the Common Areas or by abandonment of his Lot.
ARTICLE V.12 Priority of Association Lien. The lien provided for in this
Article V shall take priority over any lien or encumbrance subsequently arising or
created, except liens for real estate taxes and assessments and liens of bona fide
first mortgages which have been filed of record before a claim of this lien
hereunder has been docketed in the office of the clerk of superior court in Onslow
County, and may be foreclosed in the same manner as a mortgage on real
property under power of sale in an action brought by the Association in
accordance with the Planned Community Act. The Association is entitled to
recover its reasonable attorneys' fees and court costs and collection costs, as
part of the lien. In any such foreclosure action, the Association shall be entitled to
become a purchaser at the foreclosure sale.
ARTICLE V.13 Disputes as to Common Expenses; Adjustments. Any
Owner who believes that the portion of Common Expenses chargeable to his Lot,
for which an assessment lien has been filed by the Association, has been
improperly charged against his or her Lot, may bring action in an appropriate
court of law.
ARTICLE V.14 Purchaser at Foreclosure Sale Subject to Declaration
Bylaws, Rules and Regulations of the Association. Any purchaser of a Lot at a
foreclosure sale shall automatically become a Member of the Association and
shall be subject to all the provisions of this Declaration, the Bylaws and the Rules
and Regulations.
ARTICLE V.15 Non-Liability of Foreclosure Sale Purchaser for Past Due
Common Expenses. When the holder of a first mortgage or first deed of trust of
record or other purchaser of a Lot acquires title to the Lot as a result of
foreclosure of the first mortgage first deed of trust or by deed in lieu of
foreclosure, such acquirer of title, his, her or its successors and assigns, shall not
be solely liable for the share of the Common Expenses or other Assessments by
the Association chargeable to such Lot which became due prior to the acquisition
of title to the Lot by such acquirer, other than Assessments for which a claim of
lien has been docketed with the Onslow County clerk of superior court prior to
the recordation of the lien being foreclosed. Such unpaid share of Common
Expenses or Assessments shall be deemed to be Common Expenses collectible
from all of the Lots, including that of such acquirer, his, her or its successors or
assigns. This provision shall not relieve the party acquiring title or any
subsequent Owner of the subject Lot from paying future Assessments.
ARTICLE V.16 Liability for Assessments Upon Voluntary Conveyance. In a
voluntary conveyance of a Lot, any grantee or his or her first mortgagee shall
inform the Board of Directors in writing of such contemplated conveyance and
such grantee or first mortgagee shall be entitled to a statement from the Board of
Directors of the Association setting forth the amount of all unpaid Assessments
(including current Assessments) against the grantor due the Association. Neither
the grantee nor the mortgagee shall be personally obligated for any delinquent
Assessments, but such delinquent Assessments, along with interest, late charges,
costs and reasonable attorneys fees shall be a lien against the Lot in accordance
with Section 5.10 and Section 5.11 herein.
ARTICLE V.17 Late Charge. The Association may impose a charge against
any Lot Owner who fails to pay any amount assessed by the Association against
his Lot within ten (10) days after such Assessments are due and payable and who
fails to exercise his rights under this Declaration or under the laws of the State of
North Carolina to successfully contest such Assessment. The amount of the late
charge shall be the greater of (a) twenty and 00/100 Dollars ($20.00), or (b) ten
percent (10%) of the delinquent amount, or such other amount as may be
determined by the Association from time to time. Additionally, if a Lot Owner shall
be in Default in payment of an installment upon an assessment or of a single
monthly assessment, the Association has the right to accelerate all monthly
Assessments remaining due in the current fiscal year. The total of such
Assessments, together with the delinquent Assessments shall then be due and
payable by the Lot Owner no later than ten (10) days after the delivery of written
notice of such acceleration to the Lot Owner or twenty (20 days) days after mailing
of such. notice to him by certified mail, whichever occurs first. If such acceleration
amount is not paid by the due date, the above-described late charge may be
imposed on the part of such accelerated amount not paid by the due date.
ARTICLE V.18 Miscellaneous.
ARTICLE V.18.1 The Association may change the interest rate due
on delinquent Assessments (including any late charges), except that the
rate cannot be changed more often than once every six (6) months. As of
its effective date, the new interest rate will apply to all Assessments then
delinquent.
ARTICLE V.18.2 The Owner has the sole responsibility of keeping
the Association informed of the Owner's current address if different from
the Lot owned. Otherwise notice sent by Association to the Lot is sufficient
for any notice requirement under this Declaration.
ARTICLE V.18.3 The lien under this Article V arises automatically,
and no notice of lien need be recorded to make the lien effective.
ARTICLE V.18.4 The Assessment lien includes all collection costs,
including demand letters, preparation of documents, reasonable attorneys'
fees, court costs, filing fees, collection fees, and any other expenses
incurred by the Association in enforcing or collecting the Assessment.
ARTICLE V.18.5 Any Assessment otherwise payable in installments
shall become immediately due and payable in full without notice upon
Default in the payment of any installment. The acceleration shall be at the
discretion of the Board.
ARTICLE V.18.6 No Owner of a Lot may exempt himself or herself
from liability for his or her contribution toward the Common Expenses by
waiver of the use or enjoyment of any of the Common Areas or by the
abandonment of his or her Lot.
ARTICLE V.18.7 This Section 5.17 applies to every type of
Assessment.
ARTICLE VI
EASEMENTS AND ENCUMBRANCES
ARTICLE VIA Easement for Encroachments. The Dwelling Units, all utility
lines, and all other improvements as originally constructed by or on behalf of
Declarant or its assigns shall have an easement to encroach upon any setback,
Lot or Common Area as a result of the location of the building, utility lines and
other improvements across boundary lines between and along Lots and/or the
Common Areas, or as a result of building or improvement movement or alterations
or additions from time to time, provided that such alterations or additions have
complied with the requirements of this Declaration.
ARTICLE VI.2 Lot's Utility Easements. Easements are granted in favor of
each Lot Owner to and throughout the Common Areas and, if necessary, the
setback areas of any other Lots, as may be necessary for the installation,
maintenance, repair and use of underground water, gas, sewer, power and other
utilities and services including power and communication, now or hereafter
existing, including maintaining, repairing and replacing any pipes, wires, ducts,
conduits, equipment, fixtures, utility, power or communication lines or equipment,
or other components. The foregoing notwithstanding, no Lot Owner (other than
Declarant) may exercise the easement rights reserved in this Section 6.2 without
the prior written approval of the Board as described in Section 6.6 below and the
Declarant, so long as it owns a Lot in the Subdivision.
ARTICLE VI.3 Utility Easements. Easements are reserved and/or granted
hereby in favor of the Declarant and/or the Association through each Lot (provided
that such easements shall not materially and unreasonably interfere with the use
of any dwelling located upon any Lot) and the Common Areas for the purpose of
installing, laying, maintaining, repairing and replacing any pipes, wires, ducts,
conduits, equipment, fixtures, utility, power or communication lines or equipment,
or other components throughout the Common Areas. Without limiting any other
provision in this Article 6, it is understood that Declarant's easement rights
reserved herein may be utilized for the benefit of property within or outside of the
Subdivision. Each Lot Owner and/or his respective mortgagee by acceptance of a
deed conveying such ownership interest and each mortgagee encumbering such
ownership interest, as the case may be, hereby irrevocably appoint Declarant, or
the Association, as the case may be, as his attorney in fact, coupled with an
interest, and authorize, direct and empower such attorney, at the option of the
attorney, to execute, acknowledge and record for and in the name of such Lot
Owner and his mortgagee, such easements or other instruments as may be
necessary to effect the purpose of this Section 6.3. The easements may be
assigned and/or granted by the Declarant and/or the Association to any utility or
service company.
ARTICLE VIA General Easements. An easement is hereby reserved and/or
granted in favor of the Declarant and/or the Association in, on, over and through
the Common Areas, the Lots and/or Dwelling Units for the purposes of
maintaining, cleaning, repairing, improving, regulating, operating, policing,
replacing and otherwise dealing with the Common Areas, Lots and/or Dwelling
Units, including all improvements thereon as required or permitted by the
Constituent Documents or applicable law. An easement is hereby reserved in
favor of Declarant over the Common Areas for the purpose of advertising or
promoting sales of Lots or Dwelling Units in the Subdivision.
ARTICLE VI.5 Access Easement. Appurtenant to each Lot is an easement
over any Common Area for necessary pedestrian and vehicular ingress and
egress to and from any such Lot over the Common Areas, to and from a
thoroughfare. The easement shall be over such walkways, driveways, or other
ways as are designated by the Declarant and/or the Association and shall be
subject to the terms of the Constituent Documents.
ARTICLE VI.6 Use of Easement. Any use of the rights and easements
granted and reserved in this Article VI shall be reasonable. If any damage,
destruction, or disturbance occurs to a Lot or Common Area as a result of the use
of any easement or.right, the Lot or Common Area shall be restored by, or at the
direction of, the Association promptly in a reasonable manner at the expense of
the person or persons making the use of the easement or right that resulted in the
damage, destruction or disturbance. Before beginning work, Association may
require all or any part of the expected expense to be prepaid by that person or
those persons liable for the expense. Additionally, should any Lot Owner other
than Declarant elect to exercise its easement rights hereunder, it shall be required
to obtain the Board's prior written approval (not to be unreasonably withheld),
after providing the Board with detailed plans of its proposed work, as well as
evidence of appropriate insurance and other such reasonable information or
assurances as the Board may require. No easement may be granted across,
through, over, or under any Lot or Common Area, which materially restricts
ingress and egress to the Lot or Common Area, unless reasonable alternate
ingress and egress is provided or unless the restrictions is only temporary. All
easements reserved hereunder shall be perpetual and non-exclusive.
ARTICLE VI.7 Reservation of Access Easement by Declarant. Declarant
reserves an easement for itself, its grantees, successor and assigns, to enter upon
the Subdivision for access, including ingress and egress for both vehicles and
pedestrians, to and from any public street, road, land, walkway or right-of-way.
The easement shall be over the streets, sidewalks, bridges and other access ways
of the Subdivision. Declarant further reserves the right to connect, at Declarant's
expense, to any street, roadway, walkway or other means of access that are
located on the Common Areas of the Subdivision. This reservation of access
easements and the right of connection should be construed liberally in favor of
the Declarant, in order to facilitate the development of all or any portion of the
subdivision.
ARTICLE VI.8 Reservation of Construction Easement by Declarant. The
Declarant reserves the non-exclusive right and easement to temporarily go upon
the Subdivision in order to complete the development of the Subdivision and the
construction of the improvements to be located therein, and to develop other
neighboring land. The easement should be construed broadly in favor of the
Declarant, including giving Declarant the right to store temporarily construction
materials, equipment or dirt. After the construction is finished, Declarant must, at
Declarant's cost, repair any damage done to the Subdivision including to any
landscaping. As soon as reasonably possible after Declaration has completed
construction on the neighboring land, Declarant must remove all debris,
equipment, materials and dirt from the Subdivision.
ARTICLE VI.9 Roadway Easement. Pursuant to the Roadway Declaration,
Declarant has reserved for the benefit grants to all Lot Owners the non-exclusive
right of ingress and egress on, over and across all public and private roadways
(the "Roadways") located on or to be located on a portion of the Subdivision
which private roadways extend between one or more publicly dedicated streets.
Roadways (other than those (if any) that have been accepted by applicable
governmental authorities for maintenance, constitute Common Areas and shall be
maintained, insured, and repaired by the Association in accordance with this
Declaration and the Roadway Declaration.
ARTICLE VI.10 Declarant's Easements: General. The easements and
grants reserved for and granted to the Declarant also benefit and bind any heirs,
successors and assigns of Declarant and their respective guests, invitees or
lessees, including, without limitation, assignees of Declarant who do not own
property within the Subdivision.
ARTICLE VI.11 Reservation of easement for wasterwater disposal or
treatment lines. An fifteen foot wide Easement is reserved unto Declarant along
both outside of Jackson Court and the connector path to the community septic
field as the same is shown on the plat of the subdivision recorded in map Book
at Page of the Onslow County Registry. Developer reserves the right
to assign such easement to individual lot owners for the purpose of running
wasterwater lines to the community septic field.
ARTICLE VI.12 Easement for Public conveyances and Emergency
Vehicles. An Easement for access is reserved for all public and private
emergency vehicles, police or other public safety vehicles and for all school
buses.
ARTICLE VI.13 Easements to Run with Land. All easements and rights
described in this Article VI are easements appurtenant, running with the land,
perpetually in full force and effect, and at all times shall inure to the benefit of and
be binding on the Declarant, its successors and assigns, and any Owner,
purchaser, mortgagee, and other person or entity now or hereafter having an
interest in the Subdivision, or any part or portion of it.
ARTICLE VI.14 Reference to Easements and Deeds. Reference in the
respective deeds of conveyance or any mortgage or trust deed or other evidence
of obligation, to the easements and rights described in this Declaration, shall be
sufficient to create and reserve such easements and rights to the respective
grantees, mortgagees and trustees in said instruments as fully and completely as
those such easements and rights were recited fully and set forth in their entirety in
such instruments.
ARTICLE VII
INSURANCE
ARTICLE VII.1 General Insurance. To the Extent that ti deems necessary
the Association may carry a master policy of fire and extended coverage,
vandalism, malicious mischief and liability insurance, and if required by law,
workmen's compensation insurance with respect to the Subdivision and the
Association's administration thereof in accordance with the following provisions:
ARTICLE VII.1.1 The Association shall purchase a master policy for
the benefit of the Association, the Lot Owners and their mortgagees as their
interest may appear, subject to the provisions of this Declaration and the
Bylaws. The "master policy" may be made up of several different policies
purchased from different agencies and issued by different companies.
ARTICLE VII.1.2
ARTICLE VI1.1.3 The Board of Directors shall review the insurance
coverage required under this Section 7.1 at least annually, and if any of
such insurance coverage becomes impossible or impractical to obtain, the
Association shall obtain coverage that most closely approximates the
required coverage with the deductible provisions as determined by the
Board of Directors. In any event, all such insurance must comply, at a
minimum, with the applicable requirements set forth in the North Carolina
Planned Community Act.
ARTICLE VII.1.4 If the required insurance coverage under this
Section 7.1 ceases to exist for any reason whatsoever, any mortgagee of
any portion of the Subdivision may remedy that lack of insurance by
purchasing policies to supply that insurance coverage. The funds so
advanced shall be deemed to have been loaned to the Association; shall
bear interest at a per annum rate two percent (2%) higher than the basic
interest rate in any note secured by the mortgagee's mortgage against a
portion of the Subdivision; and shall be due and payable to the mortgagee
by the Association immediately. The repayment of this obligation shall be
secured by a Special Assessment against all Lot Owners under Article V of
this Declaration and shall not require a vote of the Members of the
Association, anything to the contrary in this Declaration notwithstanding.
ARTICLE VII.1.5 The Association shall also maintain liability
insurance in reasonable amounts, covering all occurrences commonly
insured against for death, bodily injury, and property damage arising out of
or in connection with the use, ownership, or maintenance of the Common
Areas. The Association shall try to have its liability insurance contain
cross-liability endorsements or appropriate provisions to cover liability of
the Lot Owners, individually and as a group (arising out of their ownership
interest in the Common Areas), to another Lot Owner.
ARTICLE VII.2 Fidelity Insurance. The Association must have fidelity
coverage against dishonest acts on the part of Officers and employees, Members
of the Association, members of the Board, trustees, employees or volunteers
responsible for the handling of funds collected and held for the benefit of the Lot
Owners. The fidelity bond or insurance must name the Association as the named
insured and shall be written in an amount sufficient to provide protection which is
in no event less than the insured's total Regular Assessment, plus all accumulated
reserves and all other funds held by the Association either in its own name or for
the benefit of the Lot Owners.
ARTICLE VII.3 Directors' and Officers' Errors and Omissions Insurance.
The Association shall purchase insurance to protect itself and to indemnify any
Director or Officer, past or present against expenses actually and reasonably
incurred by him/her in connection with the defense of any action, suit or
proceeding, civil or criminal, in which he is made a party by reason of being or
having been such Director or Officer, except in relation to matters as to which he
shall be adjudged in such action, suit or proceeding to be liable for negligence or
misconduct in the performance of duty to the Association; or to obtain such fuller
protection and indemnification for Directors and Officers as the law of North
Carolina permits. The policy or policies shall be in an amount to be reasonably
determined by the Association.
ARTICLE VII.4 Premiums. All premiums upon insurance purchased by the
Association shall be Common Expenses. Notwithstanding the foregoing, the Lot
Owners may be responsible for certain deductibles to the insurance policies
purchased by the Association as outlined in Section 7.1 and Section 7.7 herein.
ARTICLE VII.5 Proceeds. Proceeds of all insurance policies owned by the
Association shall be received by the Association for the use of the Lot Owners
and their mortgagees as their interest may appear; provided, however, the
proceeds of any insurance received by the Association because of property
damage shall be applied to repair and reconstruction of the damaged property,
except as may otherwise be permitted by this Declaration.
ARTICLE VII.6 Power of Attorney. Each Lot Owner shall be deemed to
appoint the Association as his true and lawful attorney-in-fact to act in connection
with all matters concerning any insurance policy obtained by the Association.
Without limitation on the generality of the foregoing, the Association as said
attorney shall have full power and authority to purchase and maintain such
insurance, to collect and remit the premiums therefor, to collect proceeds and to
distribute the same to the Association, the Lot Owners and their respective
mortgagees as their interest may appear, to execute releases of liability and to
execute all documents and to do all things on behalf of such Lot Owners and the
Subdivision as shall be necessary or convenient to the accomplishment of the
foregoing; and any insurer may deal exclusively with the Association in regard to
such matters.
ARTICLE VII.7 Responsibility of Lot Owner. The Association shall not be
responsible for procurement or maintenance of any insurance covering any Lot or
Dwelling Unit, or the contents of and Lot or Dwelling Unit nor the liability of any
Lot Owner for injuries not caused by or connected with the Association's
operation, maintenance or use of the Common Areas or other property located in
the Subdivision. Each Lot Owner shall, at his or her own expense, obtain public
liability insurance for personal injuries or damage arising out of the use and
occupancy of or occurring within his Lot or Dwelling Unit. In addition, each Lot
Owner shall maintain fire and extended coverage insurance on his Dwelling Unit,
and the contents of his Dwelling Unit. The Association may request the Lot Owner
to provide a copy of the policy(s) to the Association evidencing this insurance
coverage at any time.
Each Lot Owner agrees that if any Owner(s) damages a building or other
improvements now 'or at any time hereafter constituting a part of the Common
Areas of the Subdivision which is covered under the Association's insurance
policy, the Owner or Owners causing such damage shall be responsible for paying
the lesser of: (a) the insurance deductible due under the Association's insurance
policy; or (b) the cost to repair and/or replace any damage to a building or other
improvements, which amount shall be due within ten (10) days after the delivery of
written notice of such deductible due or replacementirepair costs by the
responsible Lot Owner(s) or twenty (20) days after mailing of such notice by
certified mail, whichever occurs first. In the event a Lot Owner refuses or fails to
pay the insurance deductible or replacement/repair costs in the time period
provided in the preceding sentence, the amount thereof may be advanced by the
Association and the amount so advanced by the Association shall be assessed to
such Owner as an Individual Assessment, which shall be due and payable
following seven (7) days written notice.
ARTICLE VII.8 Release. All policies purchased under this Article VII by
either the Association or the individual Lot Owners shall provide for the release by
the issuer, thereof, of any and all rights of subrogation or assignment and all
causes and rights of recovery against any Lot Owners, member of their family,
their employees, their tenants, servants, agents and guests, the Association, any
employee of the Association, the Board, or any occupant of a Dwelling Unit in the
Subdivision, for recovery against any one of them for any loss occurring to the
insured property resulting from any of the perils insured against under the
insurance policy.
ARTICLE VII.9 Approximate Coverage. If any of the required insurance
coverage under this Article VII becomes or is impossible to obtain or can be
obtained only at an unreasonable cost, the Association shall obtain coverage
which most closely approximates the required coverage, if such substitute
insurance is available.
ARTICLE VII.10 Additional Policy Requirements. All such insurance
coverage obtained by the Association shall be written in the name of the
Association, for the use and benefit of the Association, the Lot Owners and their
mortgagees, as further identified below. Such insurance shall be governed by the
provisions hereinafter set forth:
ARTICLE VII.10.1 Exclusive authority to adjust losses under policies
in force on the Subdivision obtained by the Association shall be vested in
the Association provided, however, that no mortgagee having an interest in
such losses may be prohibited from participating in the settlement
negotiations, if any, related thereto.
ARTICLE VI1.10.2 In no event shall the insurance coverage obtained
by the Association hereunder be brought into contribution with insurance
purchased by individual Owners, occupants, or their mortgagees, and the
insurance carried by the Association shall be primary.
ARTICLE V11.10.3 All casualty insurance policies shall have an
agreed amount endorsement with an annual review by one or more qualified
persons.
ARTICLE VI1.10.4 The Association shall be required to make every
reasonable effort to secure insurance policies that will provide for the
following:
ARTICLE VI1.10.4.1 a waiver of subrogation as discussed in
Section 7.8;
ARTICLE VI1.10.4.2that no policy may be canceled, invalidated,
or suspended on account of the acts of any one or more individual
Owners;
ARTICLE VI1.10.4.3that no policy may be canceled, invalidated
or suspended on account of the conduct of any Director, officer or
employee of the Association or its duly authorized manager without
prior demand in writing delivered to the Association to cure the defect
and the allowance of a reasonable time thereafter within which the
defect may be cured by the Association, its manager, any Owner or
mortgagee; and
ARTICLE VI1.10.4.4that any "other insurance" clause in any
policy exclude individual Owner's policies from consideration.
ARTICLE VIII
ASSOCIATION
ARTICLE V111.1 Association. The administration of the Subdivision shall be
vested in the Association. The Owner of any Lot, upon acquiring title, shall
automatically become a Member of the Association and shall remain a Member
until such time as his ownership of such Lot ceases for any reason, at which time
his membership in the Association shall automatically cease. The Association
shall have full power and responsibility to administer, operate, sustain, maintain,
and govern the Subdivision including but not limited to, the powers and
responsibilities to make prudent investments of funds held by it; to mare
reasonable Rules and Regulations; to borrow money; to make Assessments; to
bring lawsuits and defend lawsuits; to enter into contracts; to enforce all of the
provisions of this Declaration, the Bylaws and any other documents or
instruments relating to the establishment, existence, operation, alternation of the
Subdivision. The powers of the Association shall be construed liberally and shall
include, without limitation, all of the powers set forth in Section 47F-3-902 of the
Planned Community Act.
ARTICLE VIII.213oard of Directors. Unless otherwise specifically stated in
this Declaration, the Association shall act exclusively through its Board of
Directors (the "Board"). The Association in accordance with the Bylaws shall
choose the Board. The Board shall be authorized to delegate the administration of
its duties and powers by written contract to a managing agent or administrator
employed for that purpose by the Board.
ARTICLE VIII.3Limitations on Association's Duties.
ARTICLE VIII.3.1 The Association did not construct the
improvements, including the Dwelling Units. The Association does not
warrant in any way or for any purpose, the improvements in the
Subdivision. Construction defects are not the responsibility of the
Association.
ARTICLE VIII.3.2 The Association shall have a reasonable time in
which to make any repair or do any other work, which it is required to do
under the Constituent Documents. The Association must first have actual
knowledge of a problem. Any determination of the reasonableness of the
Association's response, must allow for the facts that the Association is
volunteer and that the funds available to the Association are limited.
ARTICLE VIII.3.3 In case of ambiguity or omission, the Board may
interpret the Declaration and the other Constituent Documents, and the
Board's interpretation shall be final if made without malice or fraud.
Notwithstanding the foregoing, the Declarant may overrule any
interpretation affecting it, for so long as Declarant owns any portion of the
Property and such interpretation cannot be enforce against the Declarant,
its successors or assigns.
ARTICLE IX
HARMONY, ENVIRONMENTAL CONTROLS
ARTICLE IX.1 Architectural Control Committee. Except for original
construction performed by or on behalf of Declarant or as otherwise in these
covenants provided, no building, fence, electric pet fence, sidewalk, drive,
mailbox, or other structure, or improvement or anything attached thereto visible
from the outside of the structure or improvement (including, without limitation,
storm doors, windows, drapes or window coverings) shall be erected, placed,
altered, or maintained within the Subdivision nor shall any exterior addition to or
change (including any change in color) or alteration therein be made until the
proposed building plans, specifications, exterior color and finish, plot plans
(showing the proposed location of such building or structure, drives and parking
areas), general contractor and all subcontractors, and construction schedule shall
have been submitted to and approved in writing by the Board of Directors of the
Association, or by any architectural control committee appointed by said Board of
Directors. Refusal of approval of plans, location or specification by said Board of
Directors or architectural control committee may be based upon any reasonable
ground, including, without limitation, lack of harmony of external design, color,
location or relation to surrounding structures and topography and purely aesthetic
considerations which, in the discretion of said Board of Directors or architectural
control committee shall deem sufficient. After approval by the Board of Directors
or architectural control committee is given, no alterations may be made in such
plans except by and with their prior written consent. One copy of all plans,
specifications and related data shall be furnished the Board of Directors or
architectural control committee for its records.
ARTICLE IX.2 SET BACK LINES. All improvements to any lot must
comply with Onslow County Set-back requirements. In addition, all improvements
must be located within the building "envelope" as the same is shown on the
recorded plat of the subdivision. All such improvements must also comply with
any set-back lines shown on said subdivision map. The specific set backs
required by Onslow County are: 25 feet from the front lot line; 8 feet from side lot
lines; 15 feet from the rear lot line; 50 feet from a State Highway; and 25 feet from
any other road.
ARTICLE X
USE RESTRICTIONS
ARTICLE X.1 Use and Occupancy. The Association shall make Rules and
Regulations to govern the use and occupancy of the Subdivision. In addition, the
following covenants, conditions, and restrictions, as to use and occupancy shall
run with the land and shall be binding upon each Lot Owner, his heirs, tenants,
licensees and assigns.
ARTICLE X.2 Purpose of Subdivision. Except as otherwise provided in
this Declaration, no part of the Subdivision shall be used for other than mousing
and the common recreational purposes for which the property was designed, and
each Lot shall be used only for residential purposes, unless the Board of Directors
authorizes some other use. Except for the construction, sales and management
activities (including, without limitation, the right of Declarant to maintain one or
more model Dwelling Units, or sales offices) of the Declarant, no business, trade,
industry, occupation or profession of any kind, whether for profit or not for profit,
may be conducted, maintained, or permitted on any part of the Subdivision
property. To the extent permitted by law, an Owner may use a portion of his or her
Dwelling Unit for an office or studio (other than a music and/or dance studio)
provided that the activities conducted therein shall not interfere with the quiet
enjoyment or comfort of any other owner or occupant; and provided further that
such activities do not increase the normal flow of traffic or individuals in and out
of the Subdivision or in and out of said Owner's Lot.
ARTICLE X.3 Obstruction of Common Areas. There shall be no storage or
parking of any items, including baby carriages, playpens, bicycles, wagons, toys,
vehicles, benches or chairs in any part of the Common Areas, except as permitted
by the Rules and - Regulations. Patios porches (except screened in and/or
enclosed porches) and decks, may be used only for their intended purposes.
ARTICLE X.4 Parking. Except for vehicles being used by persons
providing services to the Declarant, the Association, the Lot Owners or otherwise
used or authorized to be used at the Subdivision by the Declarant, no part of the
Subdivision may be used for the parking of any trailer coach, house trailer, mobile
home, automobile trailer, motorcycle, camp car, recreational vehicle, camper,
truck which exceeds 3/4 ton, boat, boat trailer, or any vehicle with letters or other
markings over four inches tall or wide, or any other similar vehicle (collectively,
"Special Vehicles"), unless such Special Vehicles are parked in the garage of the
Lot Owner who owns such Special Vehicle and the garage door of such Lot Owner
is completely closed at all times when a Special Vehicle is parked therein.
Operative vehicles, other than Special Vehicles, used by a resident of a Lot as a
primary source of transportation may be parked in the driveway of such Lot Owner
or in any garage space owned by the Owner of such Lot. However, the residents
of any one Lot may not collectively park more than four (4) operative vehicles
other than Special Vehicles in the Subdivision. Inoperative vehicles may not be
parked within the Subdivision unless these inoperative vehicles are parked in the
garage and the garage door is completely closed. No auto maintenance and/or
repairs may be performed on the Subdivision except if performed inside the
garage of a Lot Owner. Vehicles, whether owned by a Lot Owner or not, parked in
violation of any part of this Declaration or in violation of any Rules or Regulations,
shall be towed away and stored at the Owner's risk and expense. By parking in
the Project, the Owner of the vehicle or other vehicle user hereby waives any claim
against the Association resulting directly or indirectly out of the towing, unless
the towing can be shown beyond a reasonable doubt to have been done
maliciously by the Association. Note that the Association is not obliged to try to
determine the owner of a vehicle and first give notice, before towing the vehicle. If
a Lot Owner is not sure about the right to park at any particular area or space, the
Lot Owner should request, in writing, a written opinion from the Board. If the
Board gives the approval sought by the Lot Owner or if the Board does not answer
the written request by the Board, the Lot Owner may park in the space until further
written notice to the contrary from the Board. Note that the Association's right to
tow a vehicle includes the right to immobilize it.
ARTICLE X.5 Compliance With Insurance Policies and Waste. Nothing
shall be done or kept in any Dwelling Unit, in the Common Areas or on a Lot which
will increase the rate of insurance of the buildings, or contents thereof, applicable
for residential use, without the prior written consent of the Association. No Lot
Owner shall permit anything to be done or kept in his or her Dwelling Unit, in the
Common Areas or on a Lot which will result in the cancellation of insurance on the
buildings, or contents thereof, or which would be in violation of any law. No waste
will be committed in the Common Areas. All laws shall be obeyed.
ARTICLE X.6 Exterior Surfaces of Buildings. Lot Owners shall not cause
or permit anything to be hung or displayed on the inside or outside of windows
(except as provided herein) or hung on the outside of the Dwelling Unit doors
(including but not limited to decorative door arrangements) or placed on the
exterior walls of a building, and no sign (other than those described in Section
10.11 hereof and directional signs or signs concerning the use of the Common
Areas), awning, canopy, flag (except the American flag), shutter, radio or
television antenna shall be affixed to or placed upon the exterior walls or roof or
any part of the building, or the Common Areas without the prior written consent of
the Association. Unless otherwise approved in writing by the Association, Lot
Owners shall not cause or permit any curtains, shades or other window coverings
to be hung inside or outside any windows, doorways, and/or patio doors which
will show any color on the outside other than white or beige tones.
ARTICLE X.7 Animals and Pets. No animals of any kind shall be raised,
bred, or kept on any Lot or in any Dwelling Unit or in the Common Areas, except
that two dogs, two cats or one of each, or two other household pets may be kept
in a Dwelling Unit, subject to the Rules and Regulations, provided that it is not
kept, bred or maintained for any commercial purpose, and that it is kept subject to
the Rules and Regulations of the Association. Dogs, cats or other household pets
must be kept within the confines of the Owner's Dwelling Unit except when being
held on hand leash by the pet owner of the animal. No Lot Owner shall install a
fence and/or electric fence on any portion of the Common Area without the prior
written consent of the Board. No pet may be "staked", housed, tied up or
otherwise left in any Common Area. A Lot Owner shall be responsible for cleaning
up after his household pet. Notwithstanding the above, the Association shall have
the right to promulgate Rules and Regulations pertaining to the size, number and
type of such household pets and the right to levy fines and enforcement charges
against persons who do not clean up after their pets. Additionally, the right of an
occupant to maintain an animal in a Dwelling Unit shall be subject to termination if
the Board in its full and complete discretion, determines that maintenance of the
animal constitutes a nuisance or creates a detrimental effect on the Subdivision or
occupants. No dog house or other structure used or intended for the housing or
keeping of animals may be constructed, placed or maintained on any part of the
Common Areas.
ARTICLE X.8 Nuisances. No noxious or offensive activity shall be carried
on in any Dwelling Unit or in the Common Areas or on the Lot of an Owner, nor
shall anything be done therein, either willfully or negligently, which may be or
become an annoyance or nuisance to the other Lot Owners or occupants.
ARTICLE X.9 Impairment of Structural Integrity of Building. Nothing shall
be done in any Dwelling Unit, or on any Lot, or in, on or to the Common Areas
which will impair the structural integrity of any building or which, absent the prior
written approval of the Board, would structurally change any building.
ARTICLE X.10 Laundry or Rubbish and Open Fires in Common Areas and
Facilities. No clothes, sheets, blankets, laundry of any kind or other articles shall
be hung out or exposed on any part of the Common Areas, or on any Lot in a
manner visible from any Common Area, neighboring Lot or street. The Common
Areas shall be kept free and clear of rubbish, debris and other unsightly materials.
All trash, garbage or other rubbish shall be deposited only in covered sanitary
containers as provided in Section 10.14 below. No open fires shall be permitted
on any part of the Subdivision other than fires in charcoal grills or other similar
cooking devices located upon Lots or grills or similar devices (if any), owned by
the Association and constituting a portion of the Recreational Facilities, provided
the use of such devices does not violate any local governmental rules or
regulations.
ARTICLE X.11 Prohibited Activities. Except as otherwise provided in this
Declaration, no business, trade, industry, occupation or profession of any kind,
whether for profit or not for profit, shall be conducted, maintained or permitted on
any part of the Subdivision. A Lot Owner is permitted to place and maintain a
standard "For Sale" or "For Rent" sign only in the window of his Dwelling Unit;
provided, however it is of a typical size within the industry or within an area
expressly permitted by the Board of Directors. No other sign that is visible from
the outside of Dwelling Units may be placed on any part of the Subdivision except
as expressly permitted by the Board of Directors. Declarant and/or the Board shall
have the right to immediately remove and dispose of those items in violation of
this Declaration. A Lot Owner must obtain the prior written consent of the Board
of Directors in the event a Lot Owner desires to maintain a "For Sale" or "For
Rent" sign which is not of a typical size within the industry, or desires to maintain
other displays or advertising, unless otherwise provided for under the Rules and
Regulations. The right is reserved by the Declarant to use any such unsold or
unoccupied Dwelling Units or other structures in the Subdivision as models
and/or offices in connection with the construction, sale or rental of Dwelling Units.
So long as the Declarant owns a Lot no action may be taken nor may any
Rule or Regulation be adopted or amended that would (a) directly or indirectly
alter the exterior appearance of any part of the Subdivision; (b) reduce or
discontinue any maintenance standard or practice in effect as of the date when the
Declarant no longer controls the Board; (c) adversely affect the Declarant's sale or
leasing of any Lots; or (d) otherwise adversely affect the Declarant, any of its
rights, or any Lot owned by it without, in each case, first obtaining the Declarant's
written consent.
ARTICLE X.12 Alteration of Common Areas. Nothing shall be altered or
constructed in or removed from the Common Areas except as otherwise provided
in this Declaration and except upon the written consent of the Association. In
addition, a Lot Owner must obtain the prior written consent of the Board prior to
installing and landscaping or planting any flowers, herbs or vegetables, on any
portion of the Subdivision (including any Lot).
ARTICLE X.11 Rental of Lots. In order to protect the equity of the Lot
Owners and to carry out the purpose for which the Association was formed by
preserving the character of the Property as a homogeneous predominantly owner-
occupied residential community and to avoid the character of a renter-occupied
apartment complex, no more than fifty percent (50%) of the Dwelling Units in the
Subdivision may be leased by the respective Owners at any one time. Each Owner
in the Subdivision must obtain the approval of the Board prior to leasing his
Dwelling Unit, which approval shall not be unreasonably withheld if less than fifty
percent (50%) of the Dwelling Units in the Subdivision are then currently being
leased, and provided the following conditions are met: (a) not less than the entire
Dwelling Unit is being leased, (b) the term is not less than six (6) months; and (c) it
is not being rented for transient or hotel purposes, which shall be defined as (i)
rental for any period less than thirty (30) days, or (ii) any rental if the occupants of
the Dwelling Units are provided customary hotel service such as room service for
food and beverage, maid service and furnishing of laundry and linen. All leases of
any Dwelling Unit shall be in writing. All such leases shall provide that they are
subject to all of the provisions of the Declaration, the Bylaws and the Rules and
Regulations and that any failure by the lessee to comply with any of such
provisions shall constitute a default under the lease. A copy of each such lease
shall be given to the Declarant and the President of the Association immediately
after it is executed.
If any lessor or lessee is in violation of any of the provisions of the
foregoing documents, the Association may bring an action in its own name and/or
in the name of the lessor to have the lessee evicted and/or to recover damages. If
the Court finds that the lessee is or has violated any of the provisions of the
Declaration, the Bylaws or the Rules and Regulations, the Court may find the
lessee guilty of forcible detainer notwithstanding the facts that the lessor is riot a
party to the action and/or that the lessee is not otherwise in violation of lessee's
lease or other rental agreements with lessor. For purposes of granting the forcible
detainer against the lessee, the Court may consider the lessor a person in whose
name a contract (the lease or rental agreement) was made for the benefit of
another (i.e., the Association). The remedy provided by this Section 11.13 is not
exclusive and is in addition to any other remedy or remedies that the Association
has. If permitted by present or future law, Association may recover all of its costs,
including Court costs and reasonable attorney's fees, and such costs shall be a
continuing lien upon the Lot which shall bind the Lot in the hands of the then Lot
Owner and the Lot Owner's successors and assigns.
ARTICLE X.14 Trash Disposal. Each Lot Owner shall deposit all trash,
garbage, or other rubbish by as directed and instructed by the Board. Lot Owners
shall keep trash containers at all times in each Lot Owner's garage (if applicable),
or in such other location as designated by the Board, except on the days which
trash, garbage, or other rubbish is collected by the local waste removal
authorities. Any trash containers placed outside by the Lot Owners in the location
designated for collection by the local waste removal authorities shall only remain
in such location for a period not to exceed twenty-four (24) hours. The Board shall
have the right to dispose of any trash, garbage, or other rubbish of a Lot Owner in
violation of this Article X, and may assess the Lot Owner for the cost of such
removal, which amount shall be payable on the date the next installment of the
regular assessment is due.
ARTICLE X.15 Prohibition on use of wetlands or mitigated wetland
areas. Developer acknowledges that a portion of the subdivision property is
wetlands and is subject to the following regulations:
A. Declarant is the sole owner in fee simple of the certain Conservation
Property (Property) being approximately acres, more particularly
described in Exhibit A attached hereto and by this reference incorporated herein
reference to a recorded map showing a survey of the preserved area may be
required]; and
B. The purpose of this Conservation Declaration is to maintain wetland
and/or riparian resources and other natural values of the Property, and prevent the
use or development of the Property for any purpose or in any manner that would
conflict with the maintenance of the Property in its natural condition. The
preservation of the Property in its natural condition is a condition of Department
of the Army permit Action ID SPJ-)Loob-ea,o?) issued by the Wilmington District
Corps of Engineers (Corps), required to mitigate for unavoidable impacts to
waters of the United States authorized by that permit, and this Conservation
Declaration may therefore be enforced by the United States of America.
NOW, THEREFORE the Declarant hereby unconditionally and irrevocably
declares that the Property shall be held and subject to the following restrictions,
covenants and conditions as set out herein, to run with the subject real property
and be binding on all parties that have or shall have any right, title, or interest in
said property.
ARTICLE I. PROHIBITED AND RESTRICTED ACTIVITIES
Any activity on, or use of, the Property inconsistent with the purposes of
this Conservation Declaration is prohibited. The Property shall be maintained in its
natural, scenic, and open condition and restricted from any development or use
that would impair
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or interfere with the conservation purposes of this Conservation Declaration
set forth above.
Without limiting the generality of the foregoing, the following activities and
uses are expressly prohibited or restricted.
A. Disturbance of Natural Features. Any change disturbance, alteration or
impairment of the natural features of the Property or any introduction of non-
native plants and/or animal species is prohibited.
B. Construction. There shall be no constructing or placing of any building,
mobile home, asphalt or concrete pavement, billboard or other advertising display,
antenna, utility pole, tower, conduit, line, pier, landing, dock or any other,
temporary or permanent structure or facility on or above the Property.
C. Industrial, Commercial and Residential Use. Industrial, residential and/or
commercial activities, including any right of passage for such purposes are
prohibited.
D. Agricultural, Grazing and Horticultural Use. Agricultural, grazing, animal
husbandry, and horticultural use of the Property are prohibited.
E. Vegetation. There shall be no removal, burning, destruction, harming,
cutting or mowing of trees, shrubs, or other vegetation on the Property.
F. Roads and Trails. There shall be no construction of roads, trails or
walkways on the property.
G. Signage. No signs shall be permitted on or over the Property, except the
posting of no trespassing signs, signs identifying the conservation values of the
Property, signs giving directions or proscribing rules and regulations for the use
of the Property and/or signs identifying the Grantor as owner of the property.
H. Dumping or Storage. Dumping or storage of soil, trash, ashes, garbage,
waste, abandoned vehicles, appliances, machinery or hazardous substances, or
toxic or hazardous waste, or any placement of underground or aboveground
storage tanks or other materials on the Property is prohibited.
1. Excavation, Dredging or Mineral Use. There shall be no grading, filling,
excavation, dredging, mining or drilling; no removal of topsoil, sand, gravel, rock,
peat, minerals or other materials, and no change in the topography of the land in
any manner on the Property, except to restore natural topography or drainage
patterns.
J. Water Quality and Drainage Pattern. There shall be no diking, draining,
dredging, channeling, filling, leveling, pumping, impounding or related activities,
or altering or tampering with water control structures or devices, or disruption or
alteration of the restored, enhanced, or created drainage patterns. In addition,
diverting or causing 2
or permitting the diversion of surface or underground water into, within or
out of the easement area by any means, removal of wetlands, polluting or
discharging into waters, springs, seeps, or wetlands, or use of pesticide or
biocides is prohibited.
K. Development Rights. No development rights that have been encumbered
or extinguished by this Conservation Declaration shall be transferred pursuant to
a transferable development rights scheme or cluster development arrangement or
otherwise.
L. Vehicles. The operation of mechanized vehicles, including, but not limited
to, motorcycles, dirt bikes, all-terrain vehicles, cars and trucks is prohibited.
M. Other Prohibitions. Any other use of, or activity on, the Property which is
or may become inconsistent with the purposes of this grant, the preservation of
the Property substantially in its natural condition, or the protection of its
environmental systems, is prohibited.
ARTICLE II. ENFORCEMENT & REMEDIES
A. This Declaration is intended to ensure continued compliance with the
mitigation condition of authorizations issued by the United States of America, U.S.
Army Corps of Engineers, Wilmington District, and therefore may be enforced by
the United States of America. This covenant is to run with the land and shall be
binding on all parties and all persons claiming under the Declarant.
B. Corps, its employees and agents and its successors and assigns, have
the right, with reasonable notice, to enter the Property at reasonable times for the
purpose of inspecting the Property to determine whether the Declarant,
Declarant's representatives, or assigns are complying with the terms, conditions
and restrictions of this Conservation Declaration.
C. Nothing contained in this Conservation Declaration shall be construed to
entitle Corps to bring any action against Declarant for any injury or change in the
Conservation Property caused by third parties, resulting from causes beyond the
Declarant's control, including, without limitation, fire, flood, storm, and earth
movement, or from any prudent action taken in good faith by the Declarant under
emergency conditions to prevent, abate, or mitigate significant injury to life,
damage to Property or harm to the Property resulting from such causes.
ARTICLE III. PUBLIC ACCESS
A. This Conservation Declaration does not convey to the public the right to
enter the Property for any purpose whatsoever.
34
ARTICLE IV. DOCUMENTATION AND TITLE
A. Conservation Property Condition. The Declarant represents and
acknowledges that the Property is currently undeveloped land, with no
improvements other than any existing utility lines, Declarations and rights of way.
B. Title. The Declarant covenants and represents that the Declarant is the
sole owner and is seized of the Property in fee simple and has good right to make
the herein Declaration; that there is legal access to the Property, that the Property
is free and clear of any and all encumbrances, except Declarations of record.
ARTICLE V. MISCELLANEOUS
A. Conservation Purpose.
(1) Declarant, for itself, its successors and assigns, agrees that this
Conservation Property shall be held exclusively for conservation purposes.
B. Entire Agreement. This instrument sets forth the entire agreement of the
parties with respect to the Conservation Declaration and supersedes all prior
discussions, negotiations, understandings or agreements relating to the
Conservation Declaration. If any provision is found to be invalid, the remainder of
the provisions of this Conservation Declaration, and the application of such
provision to persons or circumstances other than those as to which it is found to
be invalid, shall not be affected thereby.
C. Recording. Declarant shall record this instrument and any amendment
hereto in timely fashion in the official records of Osnlow County, North Carolina,
and may re-record it at any time as may be required to preserve its rights.
D. Environmental Condition of Conservation Property. The Declarant
warrants and represents that to the best of its knowledge after appropriate inquiry
and investigation: (a) the Property described herein is and at all times hereafter
will continue to be in full compliance with all federal, state and local environmental
laws and regulations, and (b) as of the date hereof there are no hazardous
materials, substances, wastes, or environmentally regulated substances
(including, without limitation, any materials containing asbestos) located on, in or
under the Property or used in connection therewith, and that there is no
environmental condition existing on the Property that may prohibit or impede use
of the Property for the purposes set forth in the Recitals.
(article X16 Discrimination. No owner (including the Declarant), or any
employee, agent or representative thereof, shall discriminate upon the basis of
sex, race, age, color, creed or national origin in the sale, lease or rental of any Lot
nor in the use of the Common Areas.
ARTICLE X17 Stormwater regulations The following covenants
areintended to insure ongioing compliance with the State Storm water
Management permit Number SW8 0811009 as issued by THE Division of Water
Quality under NCAC 21-1.1000. The State of North Carolina is made a beneficiary of
these covenants to the extent necessary to maintain compliance with the
stormwater management permit.
The following covenants are to run with the land and be binding on all
persons and parties claiming under them and may not be altered or rescinded
without the express consent of the State of North Carolina, Division of Water
Quality:
a) The maximum allowable built upon area per lot is 5,000 square feet. This
allotted amount included any built-upon area constructed within the lot
boundaries and that portion of the right of way between the front lot line and edge
of the pavement. Built upon area included, but is not limited to, structures,
pavement, asphalt, concrete, gravel, brick, stone, or slate, but does not include
raised, open decking or the water surface of swimming pools.
b) For those lots within the CAMA's Area of Environmental Concern, where
a built upon area is calculated based on current CAMA regulations that is
different from DWQ's the maximum built-upon area for that lot shall be the most
restrictive of the two.
c) Alteration of the drainage as shown on the approved plans may not take
place without the concurrence of the Division of Water Quality.
d) Built-upon area in excess of the permitted amount will require a permit
modification.
e) Filling in or piping of any vegetative conveyances (ditches, swales, ets.)
Associated with the development except for average driveway crossings, is
strictly prohibited by any persons. Driveways must be piped in such a manner so
as to not impede flow.
f) Each lot will maintain a 30' wide vegetated buffer between all impervious
areas and surface waters.
g) All roof drains shall terminate at lease 30' from the mean high water
mark of surface waters.
ARTICLE XI
ENFORCEMENT
ARTICLE XI.1 Enforcement.
ARTICLE X1.1.1 The
these covenants, conditions
covenants, conditions and re
in equity against any person
("Violating Party") any coven
or enjoin violation or to reco
Association or any Lot Owner may enforce
and restrictions. Enforcement of these
strictions shall be by any proceeding at law or
or persons violating or attempting to violate
ant, condition or restriction, either to restrain
ver damages, and against the land to enforce
any lien created by these covenants. In addition to all other amounts due
on account of said violation or attempted violation, the Violating Party shall
be liable to the parties enforcing the covenants and/or restrictions of this
Declaration (the "Enforcing Parties") for all reasonable attorney's fees and
court costs incurred by the Enforcing Parties. Failure or forbearance by the
Association or any Owner to enforce any covenant, condition or restriction
herein contained shall in no event be deemed a waiver of the right to do so
thereafter. In any lawsuit filed to enforce this Declaration by injunction or
restraint, there shall be and there is hereby created and declared to be a
conclusive presumption that any violation or breach or any attempted
violation or breach of any of the within covenants, conditions or restrictions
cannot be adequately remedied by action at law or by recovery of damages.
ARTICLE XI.1.2 In addition to all other remedies of the Association,
the Association shall have the right to assess a maximum fine of $150.00
per day (or such higher amount as may be allowed by law) per violation
against any Owner who violates any provision of this Declaration or the
Articles, Bylaws or Rules and Regulations of the Association after such
Owner has been given notice of the violation and an opportunity to be heard
with respect to the violation in accordance with such policies and
procedures as may be adopted from time to time by the Board of Directors
or as may be set forth in the Bylaws.
ARTICLE XI.1.3 In addition to the above rights, the Association
may also enter upon a Lot or any land upon which a violation exists to
remove any violation, perform maintenance or make repairs thereon which
is the responsibility of a Lot Owner who has failed to remove said violation
or to perform such maintenance or make such repairs (i) after having given
such owner at least ten (10) days prior notice, or (ii) without giving notice in
the event of an emergency.
Any action brought by the Association hereunder may be brought in its own
name, in the name of its Board or in the name of its managing agent. In any case
of flagrant or repeated violation by a Lot Owner, he or she may be required by the
Association to give sufficient surety or sureties for his or her future compliance
with the covenants, conditions and restrictions contained in this Declaration, the
Bylaws and the Rules and Regulations.
ARTICLE XI.2 Severability. Invalidation of any one of these covenants,
conditions or restrictions by judgment or court order shall in no way affect any
other provisions, which shall remain in full force and effect.
ARTICLE XI.3 Restrictions Run With Land. The easements or other
permanent rights or interests are herein created, 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 Dwelling Unit subject
to this Declaration, their respective legal representatives, heirs, successors, and
assigns.
ARTICLE XIA Amendment. The Association (the Declarant controlling the
Association until the expiration of the Development Period) may amend this
Declaration at any time, as long as consistent with the design, scheme and
purposes of this Declaration, by the affirmative vote or written agreement of the
Owners to whom not less than seventy-five percent (75%) of all of the votes in the
Association are allocated in accordance with Section 4.4 and Section 4.5 above.
Any amendment must be recorded in the Onslow County Register of Deeds.
Following the end of the Development Period, no such agreement to amend, in
whole or in part, shall be effective unless written notice of the proposed
amendment is sent to every Member at least thirty (30) days in advance of any
action taken, and no such amendment shall be effective with respect to any
permanent easements or other permanent rights or interests relating to the
Common Areas herein created (unless such amendment is consented to in writing
by Declarant and all other beneficiaries of such permanent easements, rights of
interests).
ARTICLE X1.5 Reservation of Special Declarant Rights. Declarant reserves
the right to maintain sales and management offices, model units, construction
trailers, storage or staging areas, and advertising signs upon Lots or the Common
Areas and upon Lots owned by it until the expiration of the Development Period
and to exercise all other "Special Declarant Rights" as defined in the Planned
Community Act. Without limiting the foregoing, and notwithstanding anything
herein to the contrary, during the Development Period, Declarant shall have the
right to annex additional Lots or Common Areas into the Subdivision by filing a
supplement to this Declaration in the Onslow Public Registry together with an
amendment to the Plat (if applicable). Such additional Lots or Common Areas
need not be contiguous to the Property. Declarant shall have the right to assign
all or a portion of any rights or easements reserved herein by a written assignment
thereof, recorded in the Onslow Public Registry.
ARTICLE XI.6 Management and Service Contracts. Any agreement for the
professional management of the Subdivision of the Common Areas may not
exceed three (3) years and shall provide for termination by either party without
cause and without payment of a termination fee upon reasonable notice.
ARTICLE XI.7 Binding Determination. In the event of any dispute or
disagreement with or between any Owner(s) relating to, or of any other disputes,
disagreements or questions regarding, the interpretation or application of the
provisions of this Declaration or the Articles or Bylaws of the Association, the
determination thereof (i) by Declarant for so long as Declarant retains control of
the Association; and (ii) thereafter by the Board of Directors of the Association
shall be final and binding on each and all such Owners; providing that any
determination which _ directly or indirectly affects Declarant shall require
Declarant's prior consent to become binding upon Declarant.
ARTICLE X1.8 Captions and Titles. All captions, titles or headings in this
Declaration are for the purpose of reference and convenience only and are not
deemed to limit, modify or otherwise affect any of the provisions hereof, or to be
used in determining the intent or context thereof.
ARTICLE XI.9 Notices. Except as otherwise provided in this Declaration,
any notice to any Owner under this Declaration shall be in writing, shall be
effective on the earlier of (i) the date when received by such Owner, or (ii) the date
which is three days after mailing (postage prepaid) to the last address of such
Owner set forth in the books of the Association. The address of an Owner shall be
at his Lot (or any of them if more than one) unless otherwise specified in writing to
the Association. The Articles and Bylaws shall specify the permissible manner of
giving notice for voting and all other Association matters for which the manner of
giving notice is not prescribed in this Declaration.
ARTICLE XI.10 Governing Law. This Declaration shall be deemed to be
made under, and shall be construed in accordance with and shall be governed by,
the laws of the State of North Carolina, and suit to enforce any provision hereof or
to obtain any remedy with respect hereto shall be brought in state court in Onslow
County, and for this purpose each Owner by becoming such hereby expressly and
irrevocably consents to the jurisdiction of said court.
ARTICLE XII
MORTGAGEE'S RIGHTS
ARTICLE XII.1 Notice of Rights of Mortgagee of a Lot. As used herein, the
term "Mortgagee" shall mean the holder of a first lien mortgage or deed of trust on
a Lot who provides notice to the Association with its name and address with a
request to receive any notices and other rights provided to "Mortgagees" under
this Article XII. A Mortgagee of a Lot shall be entitled to receive written notification
of any default, not cured within sixty (60) days after its occurrence, by the Owner
of the Lot with respect to any obligation of the Owner under the Declaration, the
Bylaws of the Association or the Articles of Incorporation of the Association. Any
Mortgagee of a Lot can make the request for notification. The notification shall be
sent not later than the 65th day after the occurrence of an uncured Default.
ARTICLE XII.2 Rights of First Refusal. Any right of first refusal now or
hereafter contained in this Declaration or any amendment or modification hereto
or otherwise arising in favor of the Association or certain Owners shall not apply
to or preclude or impair in any way the right of the first Mortgagee to (i) foreclose
or take title to the Lot pursuant to the remedies provided in its mortgage; (ii)
accept a deed or assignment in lieu of foreclosure in the event of a default under
the Mortgage; or (iii) sell or lease a Lot and Dwelling Unit acquired by the
Mortgagee.
ARTICLE XII.3 Rights of Mortgagee. Unless at least seventy five percent
(75%) of the Mortgagees (based upon one vote for each first mortgage or deed of
trust owned), and a vote of seventy-five percent (75%) of the votes allocated to the
Members entitled to vote hereunder, the Association shall not:
ARTICLE XII.3.1 by an act or omission seek to abandon, partition,
subdivide, encumber, sell or transfer the Subdivision or Common Areas or
improvements located thereon which are owned directly or indirectly by the
Association for the benefit of the Lots (the granting of easements for public
utilities or for other purposes consistent with the intended use of the
Subdivision, or the conveyance of Common Area (not including the
Recreational Facilities) to a local governmental authority for public park
purposes or the conveyance or dedication of Roadways shall not be
deemed a transfer within the meaning of this clause);
ARTICLE XII.3.2 change the method of determining the obligations,
assessments, dues or other charges which may be levied against a Lot;
ARTICLE XII.3.3 by act or omission change, waive or abandon any
scheme of regulation or enforcement thereof pertaining to the architectural
design or exterior appearance of the Dwelling Units, the exterior
maintenance of the Dwelling Units, the maintenance of common fences or
driveways or the upkeep of lawns and plantings in the Subdivision;
ARTICLE XII.3.4 fail to maintain fire and extended coverage
insurance on insurable Common Areas on current replacement cost basis in
an amount not less than one hundred percent (100%) of the insurable value
(based on current replacement cost); or
ARTICLE XII.3.5 use hazard insurance proceeds for losses to any
Common Areas for other than the repair, replacement or reconstruction of
such Common Areas.
ARTICLE XIIA Right to Examine Books and Records. Mortgagees, their
successors or assigns, shall have the right to examine the books and records of
the Association.
ARTICLE XII.5 Taxes and Insurance. Mortgagees may, jointly or singly, pay
taxes or other charges which are in default and which may or have become a
charge against any Lot and may pay overdue premiums on hazard insurance
policies, or secure new hazard insurance coverage on the lapse of a policy, for
such Lot, and first mortgagees making such payments shall be owed immediate
reimbursement therefor from the Lot Owner.
ARTICLE XII.6 Insurance Proceeds and Condemnation Awards. No
provision of this Declaration or any other document or instrument affecting the
title to the Property, Common Areas, any Lot or the organization or operation of
the Association shall give an Owner or any other party priority over any rights of
first mortgagees of Lots within the Subdivision pursuant to their mortgages in the
case of a distribution to Owners of insurance proceeds or condemnation awards
for losses to or taking of Common Areas.
ARTICLE XIII
NON-DEDICATED STREETS
ARTICLE XIII.1Use. All non-dedicated streets constructed within the
Subdivision are reserved as easements of public access for the common use of
Owners and their families, guests and invitees, by commercial vehicles authorized
to make pick-ups and deliveries, by public and private utilities' personnel, trucks
and equipment, by postal authorities and mail carriers, by emergency personnel
and vehicles such as police, fire and ambulance, and by such other persons or
classes of persons authorized by the Board of Directors of the Association, as a
means of ingress or egress, and for such other uses as may be authorized from
time to time by said Board. Such non-dedicated streets may also include
underground utility lines, mains, sewers or other facilities to transmit and carry
sanitary sewerage and storm water drainage. Except as provided by this
Declaration, no acts shall be taken or things done by an Owner or the Association
which are inconsistent with the reservation and grant of use and enjoyment
hereinabove provided.
ARTICLE XIII.2Snow Removal Maintenance Reconstruction or
Resurfacing. The Association, at the cost and expense of the Association, shall
provide snow removal from, maintenance to and resurfacing or reconstruction of
any non-dedicated streets or any storm water drainage facilities included as a part
thereof or installed thereunder as it deems necessary or appropriate from time to
time within its sole discretion.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
BILL, I THERE A MO GAGE ON THIS ROPERTY? IF SO
WE NEED TO GET TH TO SIGN OFF.
IN WITNESS WHEREOF, Declarant has caused this instrument to be
executed as of the day and year first above written.
Hampstead Rentals, LLC,
a North Carolina Limited Liability
Company
BY:
, Member/Manager
STATE OF
COUNTY OF
I, a Notary Public of the County and State
aforesaid, certify that William B. Jones, personally appeared before me this day and
acknowledged that he is Manager of Hampstead Rentals, LLC, a North Carolina Limitfd
Liability Company, and that by authority duly given and as the act of the Limited Liability
Company, he signed the foregoing instrument in its name and on its behalf as its act and
deed.
Witness my hand and official stamp or seal, this the 5t day of September, 2009.
Notary Public
My Commission Expires:
EXHIBIT A
Legal Description
BEING located in County, North Carolina, and being
more particularly depicted as (_) subdivided residential
building Lots, together with associated Common Areas (including private alleys,
public rights of way, private parks depicted as " " and " " and
common open space depicted as "COS") on a plat of survey entitled
CONSENT OF MORTGAGEE
, an banking corporation and the holder of a
deed of trust recorded in the Office of the County,
North Carolina Register of Deeds, in Book , Page , and
in his/her capacity as trustee under the aforesaid
deed of trust, hereby consent to the execution and delivery of the foregoing
Declaration of Covenants, Conditions and Restrictions, with exhibits thereto (the
"Declaration"), and to the filing thereof, in the office of the County Recorder of
County, North Carolina, and further subject and
subordinate the above-described deed of trust to the provisions of the foregoing
Declaration with attached exhibits (including, without limitation, any easements
reserved therein).
IN WITNESS WHEREOF, , by its authorized officer, and
the undersigned Trustee have caused this Consent to be executed this day of
, 20
By:_
Name:
Title:
Name:
Title: Trustee under the aforesaid Deed of
Trust
STATE OF )
. ss:
COUNTY OF )
I, , a Notary Public of County,
State of certify that , personally came
before me this day and, being duly sworn, acknowledged that he/she is
President of , an
corporation and that the seal affixed to the foregoing instrument in writing is the
corporate seal of said corporation, and that said writing was signed and sealed by
him/her in behalf of said corporation by its authority duly given. And the
President acknowledged the said writing to be the act and deed of
said corporation.
Witness my hand and official stamp or seal this day of
2002.
My Commission Expires:
[NOTARY SEAL]
STATE OF )
. ss:
COUNTY OF )
Notary Public
I, , a Notary Public of
County, State of do hereby certify that
, Trustee, personally appeared before me this
day and acknowledged the execution of the foregoing instrument.
Witness my hand and official stamp or seal this day of
.2002.
My Commission Expires:
Notary Public
[NOTARY SEAL]
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