HAREM FOR REGISTRATION REGISTER OF DEEDS Willie L. Covington DURHAM COUNTY, NC 2005 FEB 15 01:56:51 PM BK: 4699 PG:918-939 FEE:$74 00 INSTRUMENT # 2006006061 DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS, EASEMENTS, CHARGES AND LIENS FOR Kgaun BH OX CHADSFORD Pour Foti Wate ary Aver CONTENTS Page PREAMBLE ......ccccceccosscescecscecceccessecsccsecscesseusesscensecsesecsceccesseessensesseeneesessatseasasnaeseereenes 1 ARTICLE I - DEFINITIONS .....cccccccccccccsscesseesssecsceeceseecesesessepseusereasenssseeesneasaes Section 1 - At ccccccccccccccssscescrseccescesscscccsescesssesssessnseesiseessarsensesesssssssessaseasessneserseearsenenss Section 2 - Association Section 3 - Board of Directors Section 4 - Bylaws Section 5 - Common Area Section 6 - Declarant Section 7 - Declarant Control Period Section 8 - Lot Section 9 - Member ....cccccecccceccssscssccsceccsssesssescssscesseccenseessassenserseanesseseeesseensssnsansenenseges 3 Section 10 - Owner Section 11 - Properties ARTICLE Il - PROPERTY SUBJECT TO THIS DECLARATION .........0..... 3 AND WITHIN THE JURISDICTION OF THE CHADSFORD HOMEOWNERS ASSOCIATION, INC.
Section 1 - Existing Property Section 2 - Annexation of Additional Property Section 3 - Conveyance of Common Area in Annexed Property Drawn by & HOLD FOR: MOORE & ALPHIN, PLLC (gmt) ARTICLE II] - MEMBERSHIP AND VOTING RIGHTSG...........:.::seeeiereeteeeees Section 1 - Membership Section 2 - Voting Rights Section 3 - Vacant/Leased Dwellings ARTICLE IV - PROPERTY RIGHTS .00.........:ccccccccceeseseeteeeeteeeceeneeteneeneessensensenses 5 Section 1 - Owners' Easements of Enjoyment and Access Section 2 - Delegation of Use .......cscsssssssesesseeseesenesteascesneessssteeneerensanseeneasennneneseenans 6 Section - Conveyance of Title to the Association 3
rs' Easements of Enjoyment and Access Section 2 - Delegation of Use .......cscsssssssesesseeseesenesteascesneessssteeneerensanseeneasennneneseenans 6 Section - Conveyance of Title to the Association 3 Section 4 - Regulation and Maintenance of Common Area ARTICLE V - COVENANT FOR MAINTENANCE ASSESSMENTS .............-.-4 7 Section 1 - Creation of the Lien and Personal Obligation of Assessments Section 2 - Purposes of Assessments Section 3 - Maximum Annual Assessment 0.0... ccecssssseseesssteeseereerenreetereatereersersenseies 8 Section 4 - Annual Assessments; Ratification of Budgets; Certificate of Payment Section 5 - Special Assessments ..........ccccccseeeiceereressseseetseeneseerersssenenssseacaserenanennnetects 9 Section 6 - Notice and Quorum for Any Action Authorized Under Sections 3(b) & 5 Section 7 - Effect of Nonpayment of Assessments; Remedies Section 8 - Subordination of the Lien to Mortgages Section 9 - Exempt Property .......ccccecssescessssseesseeesesserseeneesesssssssssersenseresescenseseesseneees 10 Section 10 - Working Capital Fund Section 11 - Fines Section 12 - Declarant’ Obligation to Fund Operating Deficits ARTICLE VI - RIGHTS OF LENDERS 0.0000... cecccccsecseeeeeceeseeseeseesneenesesenenseneen 10 Section 1 - Books and Record Section 2 - Notice to Lenders vo... ..ccccccsecseetceescetseseeessessssccateensesensseseessensaneasennerseensees 11 Section 3 - Approval of Owners and Holders of First Deeds of Trust Section 4 - Payment of Taxes and Insurance Premiums ARTICLE VII - EASEMENTS ..........cccccccscstcssseessersersesseessrsssseseeneeseeseeseerennenerseneas 11 Section 1 - Access and Utility Easements Section 2 - Easements for Governmental ACCESS 2000... ccccccssssereereceesceteerserersessnreennees 12
sseessersersesseessrsssseseeneeseeseeseerennenerseneas 11 Section 1 - Access and Utility Easements Section 2 - Easements for Governmental ACCESS 2000... ccccccssssereereceesceteerserersessnreennees 12 Section 3 - Owner's Easement and Right of Entry for Repair, Maintenance and Reconstruction Section 4 - Easement over Common Area Section 5 - Easement for Encroachments Section 6 - Association’s Easement Upon Lots ARTICLE VIII - ARCHITECTURAL CONTROL ..........ccececeesecceteeetetneteeeeeneeeteees 13 ~liARTICLE IX - GENERAL PROVISIONS Section 1 Section Section Section Section Section Section Section Section Section 10 Section 11. Section 12 Section 13 Section 14 Section 15 Section 16 WO mer~ IN NM fb WYN t Enforcement Severability .....ccccseessesseesseseeesesseseseerenecssseseensacerssassnserseseessessaneneesereasees Amendment Non-Liability of the City Subdivision of Lots Declarant's Right to Change Development Insurance Rules and Regulations; Enforcement Condemnation/Casualty Association Contracts and Leases During Declarant Control Period Evidence of Member Approval .........ccscscsccsesssessseseererenesersesnenensneeatenssarsess Number and Gender Captions Severability Conflicts Rule Against Perpetuities ..........ccccccesssesseseseseetensrerenesesrsessersasnssessasessessens ~iiiarene enn ye eea Peete rea NER EDO eee Eat RSEOeROE SEF Om Ems eA EOS EDORS 15 DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS, EASEMENTS, CHARGES AND LIENS FOR CHADSFORD THIS DECLARATION is made on the date hereinafter set forth by OLDE SOUTH HOMES, INC., a North Carolina corporation (hereinafter "Declarant").
WITNESSETH: WHEREAS, Declarant is the owner of approximately 22.106 acres of land located in the City of
er set forth by OLDE SOUTH HOMES, INC., a North Carolina corporation (hereinafter "Declarant").
WITNESSETH: WHEREAS, Declarant is the owner of approximately 22.106 acres of land located in the City of Durham, Triangle Township, Durham County, North Carolina, more fully described in the deed recorded in Book 3860, Page 814, Durham County Registry; and WHEREAS, Declarant desires to create on such property an exclusive residential community of detached single-family homes to be known as Chadsford (hereinafter sometimes referred to as the "Subdivision"); and WHEREAS, Declarant desires to provide for the maintenance and upkeep of the Common Area within the Subdivision, and, to that end, desires to subject the property within the Subdivision to the covenants, conditions, restrictions, easements, charges and liens hereinafter set forth, each and all of which is and are for the benefit of said property and each owner thereof; and WHEREAS, Declarant deems it advisable to create an organization to own, maintain and administer the Common Area, to administer and enforce covenants and restrictions exclusively applicable to the Subdivision, and to collect and disburse the assessments and charges hereinafter created, and Declarant has therefore incorporated under North Carolina law as a nonprofit corporation, the Chadsford Homeowners Association, Inc., for the purpose of exercising the aforesaid functions.
NOW, THEREFORE, Declarant declares that the real property described in EXHIBIT A to this Declaration and such additions thereto as may hereafter be made pursuant to Article II hereof, is and shall be owned, held, transferred, sold, conveyed, mortgaged, used and occupied subject to the covenants,
tion and such additions thereto as may hereafter be made pursuant to Article II hereof, is and shall be owned, held, transferred, sold, conveyed, mortgaged, used and occupied subject to the covenants, conditions, restrictions, easements, charges and liens set forth in this Declaration, which shall run with the real property and be binding on all parties owning any right, title or interest in said real property or any part thereof, their heirs, personal representatives, successors and assigns, and shall inure to the benefit of each owner thereof.
ARTICLE I DEFINITIONS Any defined term used in this Declaration shall have the meaning set forth below or, if not specifically defined in this Article I, the meaning of such term as set forth in the Act or in any other provision of this Declaration.
Section 1. "Act" shall mean and refer to Chapter 47F of the North Carolina General Statutes, known as the North Carolina Planned Community Act.
Section 2. "Association" shall mean and refer to the CHADSFORD HOMEOWNERS ASSOCIATION, INC., a North Carolina nonprofit corporation, its successors and assigns.
Section 3. "Board of Directors" and "Board" shall mean and refer to the Board of Directors of the Association elected or appointed to manage the affairs of the Association as provided in Article V of the Bylaws.
Section 4. "Bylaws" shall mean and refer to the Bylaws of the Association, as amended from time to time.
Section 5. "Common Area" shall mean and refer to the real property, together with any improvements thereon, owned by the Association, whether in fee or by easement, for the common benefit of the Owners of Lots within the Subdivision, and specifically including, but without limitation, all storm
nts thereon, owned by the Association, whether in fee or by easement, for the common benefit of the Owners of Lots within the Subdivision, and specifically including, but without limitation, all storm water drainage easements and ponds and facilities constructed thereon. The Common Area shall be maintained by the Association or its successors in interest unless dedicated to public use and accepted by a public agency, authority or utility as set forth herein.
Section 6. "Declarant" shall mean and refer to Olde South Homes, Inc., a North Carolina limited liability company. It shall also mean and refer to any person, firm or corporation to whom or which Olde South Homes, Inc., shall assign or delegate the rights and obligations of Declarant by an assignment of Declarant's rights recorded in the Durham County Registry.
Section 7. "Declarant Control Period” shall mean and refer to the period of time during which the Declarant may appoint or remove the members of the Board of Directors of the Association. The Declarant Control Period shall terminate upon the earlier of the following to occur: (a) December 31, 2010; (b) When the total number of votes held by the Class A Members equals the total number of votes held by Class B Members; provided, however, that, Declarant may acquire additional votes and thereby reinstate the Declarant Control Period if additional Lots within the Properties are formed by the creation and subjection to this Declaration of new Lots as set forth in Article II hereof, thus making Declarant the Owner, by virtue of its ownership of the newly-annexed Lots and of other Lots owned by it, of a sufficient number of votes (at the 10-to-1 ratio) to cast a majority of the votes of the membership (it being hereby stipulated that the termination and
nnexed Lots and of other Lots owned by it, of a sufficient number of votes (at the 10-to-1 ratio) to cast a majority of the votes of the membership (it being hereby stipulated that the termination and rejuvenation of Declarant Control shall occur automatically as often as the foregoing shall occur); or (c) Relinquishment or transfer of all Special Declarant Rights as provided in §47F-3104 of the Act.
Section 8. "Lot" shall mean and refer to any plot of land, with delineated boundary lines, shown on any recorded subdivision map of the Properties, with the exception of Common Area owned in fee by the Association, any property owned by the City or County of Durham or other governmental entity, and -2any street rights-of-way shown on such recorded map. In the event that any Lot is increased or decreased in size by recombination or resubdivision through recordation of anew subdivision plat, any newly-platted lot shall thereafter constitute a Lot.
Section 9. "Member" shall mean and refer to every person or entity who holds membership in the Association.
Section 10. "Owner" shall mean and refer to the record owner, whether one or more persons or entities, of fee simple title to any Lot which is a part of the Properties, including contract sellers and owners of an equity of redemption, but excluding those having an interest in a Lot solely as security for the performance of an obligation.
Section 11. "Properties" shall mean and refer to the "Existing Property" described in Exhibit A to this Declaration and any additional property annexed pursuant said Article I.
ARTICLE II PROPERTY SUBJECT TO THIS DECLARATION AND WITHIN THE JURISDICTION OF THE CHADSFORD HOMEOWNERS ASSOCIATION, INC.
this Declaration and any additional property annexed pursuant said Article I.
ARTICLE II PROPERTY SUBJECT TO THIS DECLARATION AND WITHIN THE JURISDICTION OF THE CHADSFORD HOMEOWNERS ASSOCIATION, INC.
Section 1. Existing Property. The real property which is and shall be held, transferred, sold, conveyed, and occupied subject to this Declaration, and which is within the jurisdiction of the Association, is described on Exhibit A attached hereto.
Section 2. Additions to Existing Property. At any time prior to December 31,2010, additional land may be annexed by the Declarant without the consent of the Members and therefore become subject to this Declaration by the recording of a plat showing such property to be annexed and of a supplementary declaration extending the operation and effect of this Declaration to the property to be annexed, provided, however, that such property must be contiguous to property already subject to this Declaration (or separated from such property only by the right-of-way of a public street or road) and must be approved by the City of Durham. The addition of such property pursuant to this Section may increase the cumulative number of Lots within the Properties and, therefore, may alter the relative maximum voting strength of the various types of Members.
Section 3. Conveyance of Common Area in Annexed Property. The owner of the annexed property shall convey to the Association all Common Area located within the newly annexed property.
Title to such Common Area shall be conveyed in the same manner as set forth in Section 3 of Article IV of this Declaration.
-3ARTICLE If MEMBERSHIP AND VOTING RIGHTS Section 1. Membership. Every Owner of a Lot which is subject to assessment by the
e same manner as set forth in Section 3 of Article IV of this Declaration.
-3ARTICLE If MEMBERSHIP AND VOTING RIGHTS Section 1. Membership. Every Owner of a Lot which is subject to assessment by the Association shall be a Member of the Association. Membership shall be appurtenant to and may not be separated from ownership of any Lot which is subject to assessment.
Section 2. Voting Rights. The voting rights of the membership shall be appurtenant to the ownership of the Lots.
There shall be two classes of membership respect to voting rights: (a) Class A Members. Class A Members shal! be the Owners of all Lots except those owned by the Class B Member (as hereinafter defined). When more than one person owns an interest (other than a leasehold or security interest) in any Lot, all such persons shall be Members and the voting rights appurtenant to their Lot shall be exercised as they, among themselves, determine, but fractional voting shall not be allowed, and in no event shall more than one vote be cast with respect to any Lot. Class A Members shall be entitled to one (1) vote for each Lot owned. Lots owned by Class A Members shall be "Class A Lots".
(b) Class B Member. The Class B Member shall be the Declarant. Subject to the provisions of this subsection, Declarant shall be entitled to ten (10) votes for each Lot that it owns (each a "Class B Lot").
At any time that Declarant no longer has the right to appoint and remove the members of the Board of Directors (see Article I, Section 8 hereof), Declarant shall have one vote for each Class Lot that it owns; however, such Lots shall continue to be treated as Class B Lots for assessment purposes.
Section 3. Vacant/Leased Dwellings. If the Owner of a Lot ceases to occupy the dwelling
Class Lot that it owns; however, such Lots shall continue to be treated as Class B Lots for assessment purposes.
Section 3. Vacant/Leased Dwellings. If the Owner of a Lot ceases to occupy the dwelling constructed thereon as his own personal living quarters or if any residence within the Properties is leased for rental purposes to tenants, the vote as expressed by the Owners of such rental units shall not be entitled to any weight greater than forty-nine percent (49%) on any matter pending before the Association.
An Owner may lease or sublet his/her dwelling; however, any lease or sublease must be for at least six (6) months, in writing and contain the following provision: "Tenant shall obey, adhere to and be bound by all provisions of the Declaration Of Covenants, Conditions, Restrictions, Easements, Charges And Liens For Chadsford, recorded in the Durham County Registry. Tenant acknowledges that he has received of a copy such Declaration and the rules and regulations of the Association and is familiar with the provisions of same."
Ifan Owner fails to include said provision in any lease or sublease, it shall be conclusively deemed to be included and part of said lease or sublease.
-4ARTICLE IV PROPERTY RIGHTS Section 1. Owners' Easements of Enjoyment and Access, Except as limited by Section 2 of this Article IV and by the rules and regulations adopted by the Members and/or the Board of Directors of the Association, every Owner shall have a right and easement of enjoyment in, use of and access to, from, and over the Common Area, which right and easement shall be appurtenant to and shall pass with title to every Lot, subject to: (a) the right of the Association to charge reasonable admission and other fees for the
Common Area, which right and easement shall be appurtenant to and shall pass with title to every Lot, subject to: (a) the right of the Association to charge reasonable admission and other fees for the use of any facilities hereafter situated or constructed on the Common Area and to limit the use of such facilities to Owners who occupy a residence on the Properties and to their families, tenants and guests, as provided in Section 2 of this Article IV.
the voting rights of an Owner and the right of an Owner to use to Common Area and facilities thereon for any period during which any assessment against his Lot remains unpaid for a period of 30 days or longer, or for a period not to exceed sixty (60) days for any infraction of the published rules and regulations of the Association.
(c) the right of the Association to dedicate or transfer all or any part of the Common Area to any public agency, authority, or utility for such purposes and subject to such conditions as may be agreed upon by the Members. No such dedication or transfer shall be effective unless the Members entitled to at least 80% of the votes of the Association agree to such dedication, sale or transfer and signify their agreement by a signed and recorded document, provided that this subsection shall not preclude the Board of Directors of the Association from granting easements for the installation and maintenance of sewage, utility, drainage facilities, cable television service or other similar uses, upon, over, under and across the Common Area without the assent of the Members when such easements, in the opinion of the Board, are
rainage facilities, cable television service or other similar uses, upon, over, under and across the Common Area without the assent of the Members when such easements, in the opinion of the Board, are necessary for the convenient use and enjoyment of the Properties. Notwithstanding anything herein to the contrary, the Common Area shall be preserved to the perpetual benefit of the Owners or of the public in general and shall not be conveyed except to the City of Durham, or other appropriate government entity, or to another nonprofit corporation for the aforementioned purposes. Notwithstanding any other provision of this Declaration, the Board of Directors of the Association may, without vote of the Members, exchange Common Area for equivalent real property, provided that such exchange is approved by City of Durham or other appropriate government entity.
(d) the right of the Association, with the assent of Members entitled to at least 80% of the votes of the Association, to mortgage, pledge, deed in trust, or otherwise encumber any or all of its real or personal property as security for money borrowed or debts incurred, provided that the rights of any such lender or mortgagee shall be subordinate to the property rights of the Owners as set forth herein.
(e) the right of the Association, with the approval of the City of Durham and subject to the limitations of the Act, to exchange all or part of the Common Area for other property and consideration of like value and utility.
Section 2. Delegation of Use.
(a) Family. The right and easement of use and enjoyment granted to every Owner by Section 1 of this Article may be exercised by members of the Owner's family who occupy the residence
elegation of Use.
(a) Family. The right and easement of use and enjoyment granted to every Owner by Section 1 of this Article may be exercised by members of the Owner's family who occupy the residence of the Owner within the Properties as their principal residence in Durham County, North Carolina.
(b) Tenants. The right and easement of use and enjoyment granted to every Owner by Section 1 of this Article may be delegated by such Owner to his tenants or contract purchasers who occupy a residence within the Properties, or a portion of said residence, as their principal residence in Durham County, North Carolina.
(c) Guests. The right and easement of use and enjoyment granted to every Owner by Section 1 of this Article may be delegated to guests of such Owners, tenants or contract purchasers, subject to such rules and regulations as may be established by the Board of Directors.
Section 3. Conveyance of Title To The Association. Declarant covenants, for itself, its successors and assigns, that it will convey to the Association title to those portions of the Common Area to be owned in fee by the Association. Declarant reserves an easement over and across the Common Area so long as it owns any Lots within the Properties for the purpose of constructing any improvements on the Common Area as it deems necessary or advisable. Except as otherwise stated herein, all conveyances by Declarant to the Association shall be free and clear of all encumbrances and liens, including statutory liens of laborers and materialmen pursuant to Article 2 of Chapter 44A of the North Carolina General Statutes, except utility, drainage and greenway easements of record or shown on the recorded plats of the Subdivision. Any improvements placed on the Common Area by Declarant shall become the property of
tutes, except utility, drainage and greenway easements of record or shown on the recorded plats of the Subdivision. Any improvements placed on the Common Area by Declarant shall become the property of the Association upon completion of such improvements.
Section 4. Regulation and Maintenance of Common Area. It is the intent of the Declarant that the Common Area (whether owned by the Association in fee or by easement) be preserved to the perpetual benefit of the Owners within the Subdivision. To that end, Declarant will, prior to the conveyance of the first Lot in any phase or section of the Subdivision to an Owner, reserve on a recorded plat or grant to the Association an easement over and across that portion of any Lot within such phase or section on which a Common Area easement lies.
(a) Rights and Responsibilities of the Lot Owners. Each Owner of a Lot upon which a Common Area easement lies shall pay all property taxes and other assessments levied against his Lot, including that portion of such tax or assessment as is attributable to such Common Area, Notwithstanding any other provision of this Declaration, no Owner or other person shall, without the prior written consent of the Association: (1) remove any trees or vegetation from any Common Area; (2) erect gates, fences, buildings or other structures on any Common Area; (3) place any garbage receptacles on or in any Common Area; (4) fill or excavate any Common Area or part thereof; or (5) plant vegetation or otherwise restrict or interfere with the use, maintenance, and preservation of any Common Area.
It is the intent of the Declarant that a Common Area easement shall be maintained in the same state as when the Lot upon which such easement lies was conveyed to the Owner. If an Owner of
Common Area.
It is the intent of the Declarant that a Common Area easement shall be maintained in the same state as when the Lot upon which such easement lies was conveyed to the Owner. If an Owner of a Lot on which a Common Area easement lies fails to maintain the easement area as provided herein, whether by act or omission, the Association shall have the right to enter upon such Owner's Lot for the -6purpose of maintaining same and shall have the right to charge such Owner with the costs of such maintenance, which costs, if not paid within thirty (30) days after demand for payment is made by the Association, shall be collected in the same manner and shall incur the same late charges, interest and costs of collection as set forth in Section 7 of Article V of this Declaration.
(b) Rights and Responsibilities of the Association. The Association shall have the right and obligation to ensure that the Common Area is preserved to the perpetual benefit of the Owners and, to that end, shall: (i) maintain the Common Area in its natural or improved state, as appropriate, and keep it free of impediments to its free use by the Owners; (ii) procure and maintain adequate liability insurance covering the Association and its Members against any loss or damage suffered by any person, including the Owner of the Lot upon which Common Area lies, resulting from use of the Common Area; and (iii) pay all property taxes and other assessments levied against all Common Area owned in fee by the Association.
(c) Association's Right of Entry for Maintenance of Common Area Easements. The Association and its employees, agents, contractors and subcontractors shall have a nonexclusive right and easement at all times to enter upon any portion of a Lot reserved or designated as a Common Area
sociation and its employees, agents, contractors and subcontractors shall have a nonexclusive right and easement at all times to enter upon any portion of a Lot reserved or designated as a Common Area easement, and any other portion of the Lot to the extent necessary to gain access to the Common Area easement, for the purposes of: (i) installing and maintaining entrance signage and other signage; (ii) making such improvements to the Common Area easement as have been approved by the Association; and (iii) maintaining the Common Area easement in its natural or improved state, including, without limitation, removal of fallen trees and other debris and, in general, keeping the easement area free from obstructions and impediments to its use. No such entry shall be deemed a trespass. To the extent practicable, the Association shall give reasonable oral notice to the Owner or occupant of such Lot.
ARTICLE V COVENANT FOR MAINTENANCE ASSESSMENT Section 1. Creation of the Lien and Personal Obligation of Assessments. Declarant, for each Lot that it owns within the Properties, hereby covenants, and each Owner of any Lot, by acceptance of a deed therefor, whether or not it shall be so expressed in such deed, is deemed to covenant and agree to pay to the Association annual assessments and special assessments, such assessments to be established and collected as hereinafter provided. All assessments which are unpaid when due, together interest and late charges set forth in Section 7 of this Article V and all costs of collection, including reasonable attorneys’ fees, shall be a charge on the land and, as provided in §47F-3-116 of the Act, shall be a continuing lien upon the Lot against which such assessment is made. Each such assessment or charge, together with
s, shall be a charge on the land and, as provided in §47F-3-116 of the Act, shall be a continuing lien upon the Lot against which such assessment is made. Each such assessment or charge, together with interest and costs of collection, including reasonable attorneys’ fees, shall also be the personal or corporate obligation of the person(s), firm(s) or corporation(s) owning such Lot at the time when the assessment fell due, but such personal obligation shall not be imposed upon such Owner's successors in title unless expressly assumed by them. Although unpaid assessments and charges are not the personal obligation of such Owner's successors in title unless expressly assumed by them, the unpaid assessments and charges shall continue to be a lien upon the Lot against which the assessment or charge was made.
Section 2. Purposes of Assessments. The assessments levied by the Association shall be used exclusively to promote the recreation, health, safety and welfare of the residents of the Properties and, in particular, for: (i) acquisition, improvement, and maintenance of properties, services and facilities related -7to the use and enjoyment of the Common Area; (ii) maintenance, repair and reconstruction of the Common Area and improvements thereon, including, without limitation, storm water drainage facilities, and, including, without limitation, the cost of repair, replacement and additions thereto and the cost of labor, equipment, materials, management and supervision thereof; (iii) payment of taxes and public assessments levied against the Common Area owned by the Association in fee; (iv) procurement and maintenance of insurance; (v) employment of attorneys, accountants and other persons or firms to represent the Association
against the Common Area owned by the Association in fee; (iv) procurement and maintenance of insurance; (v) employment of attorneys, accountants and other persons or firms to represent the Association when necessary; (vi) payment of principal and interest on funds borrowed for Association purposes; and (vii) such other needs as may arise.
Section 3. Maximum Annual Assessment. Until December 31, 2005, the Maximum Annual Assessment shall be $300.00 for each Class A Lot.
(a) Fromandafter January 1, 2006, the Maximum Annual Assessment for Class A Lots shall automatically increase by an amount equal to 10% of the Maximum Annual Assessment for the previous year.
(b) | The Maximum Annual Assessments for Class A Lots may be increased without limitation if such increase is approved by not less than two-thirds (2/3) of the votes cast by the Class A Members present, in person or by proxy, at a meeting duly called for that purpose.
Section 4. Annual Assessments: Ratification of Budgets; Certificate of Payment. Subject to the provisions of this Section, the Board of Directors may fix the annual assessment for Class A Lots at any amount not in excess of the Maximum Annual Assessment in effect for the appropriate assessment year. Annual assessments shall be fixed at a uniform rate for all Class A Lots and may be collected on a yearly, semiannually, quarterly, or monthly basis, as determined by the Board of Directors.
Unless a lower amount is set by the Board of Directors, the initial annual assessment shall be the "Maximum Annual Assessment" set forth in Section 3 of this Article and shall be prorated according to the number of months remaining in the calendar year. Unless a different commencement date is set by the
mum Annual Assessment" set forth in Section 3 of this Article and shall be prorated according to the number of months remaining in the calendar year. Unless a different commencement date is set by the Board of Directors, the annual assessments provided for herein shall commence as to all Lots in any phase on the first day of the month following the conveyance to the Association of all or any part of the Common Area within that phase.
The Board of Directors shall adopt a proposed budget for the Association at least annually. Within 30 days after adoption of the proposed budget, the Board of Directors shall send a copy of the proposed budget and shall give written notice to the Members of a meeting of the Members to consider ratification of the budget, such meeting to be held not sooner than 10 days nor more than 60 days after the mailing of such notice. Such meeting may, but need not be, combined with the annual meeting of the Members.
Except as provided in Section 6 below, there shall be no requirement that a quorum be present in order to vote on ratification of the budget (although a quorum must be present to vote on other matters). The budget shall be deemed ratified unless at that meeting Members having a majority of the votes of the entire membership vote to reject the budget. Notwithstanding the foregoing, if the budget provides for annual assessments not greater than 10% larger than the assessment in effect for the immediately preceding year, such budget shall be deemed ratified unless Members having at least 80% of the votes of the membership vote to reject the budget. If the proposed budget is rejected, the budget last ratified by the Members shall be continued until such time as the Members ratify a subsequent budget proposed by the Board.
-8-
o reject the budget. If the proposed budget is rejected, the budget last ratified by the Members shall be continued until such time as the Members ratify a subsequent budget proposed by the Board.
-8A Class B Lot that contains a dwelling that is occupied as a residence shall be assessed at the Class Arate. All other Class B Lots (including, without limitation, a Lot containing a dwelling used as a model and/or sales center) shall not be subject to assessment by the Association.
The Association shall, upon demand, and for such reasonable charge as the Board of Directors may determine, furnish a certificate signed by an officer of the Association setting forth whether the assessments on a specified Lot have been paid. If such certificate states that an assessment has been paid, such certificate shall be conclusive evidence of payment.
Section 5. Special Assessments. In addition to the annual assessments authorized above, the Association may levy, in any assessment year, special assessments for the purpose of defraying, in whole or in part, the cost of any construction, reconstruction, repair or replacement of a capital improvement upon the Common Area, including fixtures and personal property related thereto, for repayment of indebtedness and interest thereon, or for any other purpose, provided that any such assessment shall have the same assent of the Members as provided in Section 3(b) of this Article. Special assessments shall be fixed at a uniform rate for all Class A Lots (Class B Lots not being subject to special assessments) and may be collected on a yearly, semiannually, quarterly, or monthly basis, as determined by the Board of Directors.
Section 6. Notice of Quorum for any Action Authorized Under Sections 3(b) and 5. Written
y be collected on a yearly, semiannually, quarterly, or monthly basis, as determined by the Board of Directors.
Section 6. Notice of Quorum for any Action Authorized Under Sections 3(b) and 5. Written notice of any meeting called for the purpose of taking any action authorized under Section 3(b) or 5 shall be sent to all members not less than fifteen (15) days nor more than thirty (30) days prior to the meeting.
At such meeting, the presence of Members or of proxies entitled to cast sixty (60%) percent of the votes of each Class of Lots shall constitute a quorum. If the required quorum is not present, another meeting may be called subject to the same notice or requirement, and if the same is called for a date not later than sixty (60) days after the date of the first meeting, the required quorum at the subsequent meeting shall be one-half (4) of the required quorum at the preceding meeting.
Section 7. Effect of Nonpayment of Assessments: Remedies. An assessment not paid within ten (10) days after the due date shall incur such late charge as the Board of Directors may from time to time establish, and, if not paid within thirty (30) days after the due date, shall also bear interest from the due date at the rate of eighteen percent (18%) per annum or the highest rate allowed by law, whichever is less. The Association may bring an action at law or in equity against the Owner personally obligated to pay the same and/or foreclose the lien against the Lot for which such assessment is due. Interest, late payment charges, costs and reasonable attorneys’ fees of such action or foreclosure shall be added to the amount of such assessment. No Owner may waive or otherwise escape liability for the assessments provided for herein
s and reasonable attorneys’ fees of such action or foreclosure shall be added to the amount of such assessment. No Owner may waive or otherwise escape liability for the assessments provided for herein by non-use of the Common Area or by abandonment of his Lot.
Section 8. Subordination of the Lien to Mortgages. The liens provided for herein shall be subordinate to the lien of any first mortgage or first deed of trust on a Lot. Sale or transfer of any Lot shall not affect any assessment lien; however, the sale or transfer of a Lot pursuant to foreclosure of a first mortgage or deed of trust, or any proceeding in lieu of foreclosure thereof, shall extinguish the lien of any assessments which became due prior to the date of such conveyance. No such sale or transfer shall relieve such Lot from liability for any assessments thereafter becoming due or from the lien thereof, but the liens provided for herein shall continue to be subordinate to the lien of any first mortgage or deed of trust.
-9Section 9. Exempt Property. All property dedicated to and accepted by a public authority and all property owned by a charitable or nonprofit organization exempt from taxation by the laws of the State of North Carolina shall be exempt from the assessments created herein. Notwithstanding the foregoing, no land or improvements devoted to dwelling use shall be exempt from said assessments.
Section 10. | Working Capital Fund. At the time of closing of the initial sale of each dwelling constructed on each Lot, a sum equal to one-fourth (1/4) of the annual assessment for the appropriate Class A Lot in effect at the time of such sale or occupancy shall be collected from the purchaser of such Lot and
each Lot, a sum equal to one-fourth (1/4) of the annual assessment for the appropriate Class A Lot in effect at the time of such sale or occupancy shall be collected from the purchaser of such Lot and transferred to the Association as part of its working capital. The purpose of the working capital fund is to ensure that the Association will have adequate cash available to meet unforeseen expenditures or to acquire additional equipment or services deemed by the Board of Directors to be necessary or desirable.
Amounts paid to pursuant to this Section shall not be considered as an advance payment of any regular assessment.
Section 11. Fines. In addition to such other rights as are granted in the Act, the Articles of Incorporation, this Declaration or the Bylaws, pursuant to the procedures set forth in Section 3 of Article VII of the Bylaws, to impose sanctions for violations by an Owner, a member of his family, or any occupant, tenant, employee, guest or invitee of the Owner, of this Declaration, the Bylaws, rules and regulations adopted Association or the Restrictive Covenants applicable to the Properties (hereinafter individually and collectively referred to as the "Rules"), which sanctions may include, but are not limited to, reasonable monetary fines, not to exceed the greater of the costs actually incurred by the Association in abating such violation including, without limitation, attorney's fees, or $75.00 per day, or part thereof, in which the violation continues to exist for a first violation, $100.00 per day for a second violation of the same rules or regulations, and $150.00 per day for a third or subsequent violation. The failure of the Board to enforce any of the Rules shall not be deemed a waiver of the right to do so thereafter.
same rules or regulations, and $150.00 per day for a third or subsequent violation. The failure of the Board to enforce any of the Rules shall not be deemed a waiver of the right to do so thereafter.
Any monetary fines imposed against an Owner pursuant to this Section 11 and/or Article 3 of Section VII of the Bylaws shall constitute a lien against the Lot of such Owner to the same extent as if such fine were an assessment against such Lot.
Section 12. Declarant’s Obligation to Fund Operating Deficits. During the Declarant Control Period, Declarant shall be obligated to fund any deficit between the normal operating expenses of the Association and the monies received by the Association from the Owners from assessments. Declarant, at its option, may pay such expenses directly to the person or entity providing the services or materials or pay to the Association the amounts necessary to fund the operating deficit.
ARTICLE VI RIGHTS OF LENDERS Section 1. Books and Records. Any owner or holder of a first deed of trust on any Lot, or its agent(s), shall have the right, during normal business hours, to examine copies of this Declaration, the Articles of Incorporation, Bylaws, and the books and records of the Association and, upon written request to the Association, to receive a copy of the financial statement for the immediately preceding fiscal year.
-10Section 2. Notice to Lenders. Upon written request to the Association, the owner or holder of a first deed of trust on any Lot shall be entitled to timely written notice of: (a) Any 60-day delinquency in the payment of assessments or charges owed by the Owner of the Lot securing its loan.
(b) A lapse, cancellation, or material modification of any insurance policy or fidelity bond maintained by the Association.
nt of assessments or charges owed by the Owner of the Lot securing its loan.
(b) A lapse, cancellation, or material modification of any insurance policy or fidelity bond maintained by the Association.
(c) Any proposed action that requires the consent of a specified percentage of owners or holders of first mortgages on the Lots.
Section 3. Approval of Owners and Holders of First Deeds of Trust. Unless at least seventy-five percent (75%) of the owners and holders of the first deeds of trust on Lots located within the Properties have given their prior written approval, the Association shall not: (a) By act or omission seek to abandon, partition, subdivide, encumber, sell, or transfer any real estate or improvements thereon which are owned, directly or indirectly, by the Association.
Neither the granting of easements for utilities or other purposes nor the exchange of real property as provided in Section 1(c) of Article IV hereof shall be deemed a transfer within the meaning of this clause.
Notwithstanding anything herein to the contrary, the property owned by the Association, whether in fee, by easement, or otherwise, shall be preserved to the perpetual benefit of the Owners or of the public in general and shall not be conveyed except to the City of Durham or other appropriate government entity or to another nonprofit corporation for the aforementioned purposes.
(b) Change the method of determining the obligations, assessments, dues or other charges which may be levied against a Lot; (c) Fail to maintain hazard insurance on insurable improvements on the Common Area ona current replacement cost basis in an amount not less than one hundred percent (100%) of the insurable value; or (d) Use the proceeds of any hazard insurance policy covering losses to any part of the
a current replacement cost basis in an amount not less than one hundred percent (100%) of the insurable value; or (d) Use the proceeds of any hazard insurance policy covering losses to any part of the Common Area for other than the repair, replacement, or reconstruction of the damaged improvements.
Section 4. Payment of Taxes and Insurance Premiums. The owners or holders of first deeds of trust on Lots, jointly or singly, may pay taxes or other charges which are in default and which have or may become a charge or lien against any of the Common Area and may pay overdue premiums on hazard insurance policies or secure new hazard insurance coverage upon the lapse of a policy covering property owned by the Association. The persons, firms or corporations making such payments shall be owed immediate reimbursement therefor by the Association.
ARTICLE VIE EASEMENTS Section 1. Access and Utility Easements. Easements for the installation and maintenance of driveway, walkway, water line, gas line, telephone, cable television, electric power transmission lines, sanitary sewer and storm water drainage facilities and for other public utility installations are reserved as shown on the recorded plats of the Properties. The Association may reserve and grant easements over the Common Area as provided in Article IV, Section 1(c), of this Declaration. Within any such easement herein provided, no structure, planting or other material shall be placed or permitted to remain which may interfere with the installation or maintenance of the utilities installed thereon, or which may change the direction of flow or drainage of water through drainage pipes or channels constructed in such easements.
-11For a period of ten (10) years from the date hereof, Declarant reserves an easement and right of
ion of flow or drainage of water through drainage pipes or channels constructed in such easements.
-11For a period of ten (10) years from the date hereof, Declarant reserves an easement and right of ingress, egress and regress on, over and under the Properties to maintain and correct drainage or surface water runoff in order to maintain reasonable standards of health, safety and appearance. Such right expressly includes the right to cut any trees, bushes or shrubbery, make any gradings of the soil, or take any other similar action that it deems reasonably necessary or appropriate. After such action has been completed, Declarant as appropriate, shall grade and seed the affected property and restore the affected property to its original condition to the extent practicable, but shall not be required to replace any trees, bushes or shrubbery necessarily removed. Declarant shall give reasonable notice of its intent to take such action to all affected Owners.
Section 2. Easements for Governmental Access. An easement is hereby established over the Common Area and every Lot for the benefit of applicable governmental agencies for installing, removing, and reading water meters; maintaining and replacing water, sewer and drainage facilities, and acting for other purposes consistent with public safety and welfare, including, without limitation, law enforcement, fire protection, garbage collection, and the delivery of mail.
Section 3. Easement and Right of Entry for Repair, Maintenance and Reconstruction. If any dwelling is located closer than five (5) feet from its lot line, the Owner thereof shall have a perpetual access easement over the adjoining Lot to the extent reasonably necessary to perform repair, maintenance or
ocated closer than five (5) feet from its lot line, the Owner thereof shall have a perpetual access easement over the adjoining Lot to the extent reasonably necessary to perform repair, maintenance or reconstruction of such dwelling. Such work shall be done expeditiously and, upon completion of the work, the Owner shall restore the adjoining Lot to as nearly the same condition as that which prevailed prior to the commencement of the work as is reasonably practicable.
Section 4. Easement Over Common Area. A perpetual, nonexclusive easement over the Common Area lies is hereby granted to each Lot and its Owners, family members and tenants of such Owners, the occupants of such Lot, and guests and invitees of such Owners, tenants or occupants, for the purpose of providing access, ingress and egress to and from the Common Area and for the use thereof.
Section 5. Easement For Encroachments. In the event that any structure erected on a Lot encroaches upon any other Lot or the Common Area, and such encroachment was not caused by the purposeful act or omission of the Owner of such Lot, then an easement appurtenant to such Lot shall exist for the continuance of such encroachment upon the Common Area or other Lot for so long as such encroachment shall naturally exist. In the event that any structure erected principally on the Common Area encroaches upon any Lot, then an easement shall exist for the continuance of such encroachment of such structure onto such Lot for so long as such encroachment shall naturally exist. The foregoing shall not be construed so as to allow any extension or enlargement of any existing encroachment or to permit the rebuilding of the encroaching structure, if destroyed, in a manner so as to continue such encroachment.
strued so as to allow any extension or enlargement of any existing encroachment or to permit the rebuilding of the encroaching structure, if destroyed, in a manner so as to continue such encroachment.
Section 6. Association’s Easement Upon Lots. The Association shall have a right, license and easement to go upon any Lot for the purpose of fulfilling its obligations under this Declaration, the restrictive covenants applicable to the Subdivision, and any other laws, ordinances, rules and regulations, public or private, which the Association is obligated or permitted to enforce. Such easement shall include, without limitation, the right to go on any Lot to correct, repair or alleviate any condition which, in the opinion of the Board of Directors of the Association or of the manager employed by the Association, creates or may create an imminent danger to the Common Area or improvements thereon.
-12ARTICLE VIII ARCHITECTURAL CONTROL After occupancy of the dwelling constructed on a Lot pursuant to a certificate of occupancy or other certificate issued by the appropriate governmental entity, no building, fence, sign (including unit identification signs) wall or other structure shall be commenced, constructed, erected or maintained upon such Lot, nor shall any exterior addition to or change or alteration thereof be made, nor shall a building permit for such improvement or change be made, nor shall any major landscaping or relandscaping be commenced or made (such construction, alteration and landscaping are hereinafter referred to as the "Improvements") until plans and specifications showing the nature, kind, shape, heights, materials, color and location of same shall have been submitted to and approved in writing by the Declarant. If the
rovements") until plans and specifications showing the nature, kind, shape, heights, materials, color and location of same shall have been submitted to and approved in writing by the Declarant. If the Declarant fails to approve or disapprove such proposed Improvements within thirty (30) days after the plans and specifications have been received by it, approval will not be required, and this Article shall be deemed to have been complied with. Declarant shall have the right to charge a reasonable fee, not to exceed $125.00, for receiving and processing each application. Declarant shall have the right (but not the obligation) to promulgate and from time to time amend written architectural standards and construction specifications (hereinafter the "Architectural Guidelines") which may establish, define and expressly limit the standards and specifications which will be approved, including, but not limited to, architectural style, exterior color or finish, roofing material, siding material, driveway material, landscape design and construction technique. Declarant shall not approve any Improvements which it determines, in its discretion, not to be in harmony of external design, construction and/or location in relation to the surrounding structures, topography or the general plan of development of the Subdivision.
Declarant may, at any time, delegate the review and approval authority contained in this Article VIII to the Board of Directors of the Association, which, in turn, may delegate such authority, to an Architectural Committee composed of three or more persons appointed by the Board. Such delegation shall be made by the Declarant by recording in the Durham County Registry an Assignment Of Declarant's
Architectural Committee composed of three or more persons appointed by the Board. Such delegation shall be made by the Declarant by recording in the Durham County Registry an Assignment Of Declarant's Rights. Declarant shall delegate such authority no later than the date upon which Declarant no longer owns any Lots within the Properties, or December 31, 2010, whichever is earlier.
Any use of the term "Declarant" in this Article VIII shall be deemed to apply to Declarant and, when appropriate, to the Board of Directors or the Architectural Committee. Nothing herein shall be construed to permit interference with the development of the Lots by Declarant in accordance with its general plan of development.
ARTICLE IX GENERAL PROVISIONS Section 1. Enforcement. The Association and each Owner shall have the right to enforce, by proceeding at law or in equity, all restrictions, conditions, covenants, rules, regulations, reservations, liens and charges now or hereafter imposed by the provisions of this Declaration, the Act, the Bylaws or rules and regulations adopted by the Association. Failure by the Association or an Owner to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter.
-13The Association shall not be obligated to take action to enforce any covenant, restriction or rule which the Board reasonably determines is, or is likely to be construed as, inconsistent with applicable law, or in any case in which the Board reasonably determines that the Association's position is not strong enough to justify taking enforcement actions, or any case in which the Board reasonably determines that the cost of enforcement outweighs the benefit to be gained by enforcement. Any such determination shall
to justify taking enforcement actions, or any case in which the Board reasonably determines that the cost of enforcement outweighs the benefit to be gained by enforcement. Any such determination shall not be construed as a waiver of the right to enforce such provisions under other circumstances or to estop the Association from enforcing any other covenant, restriction or rule.
Section 2. Severability. Invalidation of any one of these covenants or restrictions by judgment or court order shall in no way affect any other provision, which shall remain in full force and effect.
Section 3. Amendment. The covenants and restrictions of this Declaration shail run and bind the land, for a term of twenty-five (25) years from the date this Declaration is recorded, after which time they shall be automatically extended for successive periods of ten (10) years unless terminated or altered by a vote of the Owners as set forth below. During the Declarant Control Period, this Declaration may be amended by the Declarant without the vote or approval of the Association or any Owner or Member. This Declaration may be amended during the first twenty-five year period by an instrument signed by the Owners of not less than eighty percent (80%) of the Lots, and thereafter by an instrument signed by the Owners of not less than seventy-five percent (75%) of the Lots. No amendment shall be effective unless it has been recorded in the office of the Register of Deeds of City of Durham. Furthermore, Declarant shall have the right, without approval or joinder of any Owner, to amend this Declaration during the Declarant Control Period to correct clerical or typographical errors and to ensure compliance with the requirements
ight, without approval or joinder of any Owner, to amend this Declaration during the Declarant Control Period to correct clerical or typographical errors and to ensure compliance with the requirements of any governmental entity with jurisdiction over the Property or the Subdivision.
Section 4. Non-Liability of the City. The City of Durham shall not be responsible for failing to provide any emergency or regular fire, police, or other public service to the Properties, any Lot, or any Owner or occupant thereof when such failure is due to the lack of access to the Properties or any Lot thereof due to inadequate design or construction of such access, blocking of access routes, or any other factor within the control of the Declarant, the Association, an Owner, or an occupant of any Lot.
Section 5. Subdivision of Lots. No Lot within the Subdivision may be subdivided by sale or otherwise so as to reduce the total Lot area shown on a recorded plat of the Subdivision, except with the consent of the Declarant and, if required, by The City of Durham Section 6. Declarant's Right To Change Development. With the approval of The City of Durham, Declarant shall have the right, without consent or approval of the Owners, to create dwelling units, add Common Area, change unit types and reallocate units within, and withdraw real property from the development.
Section 7. Insurance. The Association shall procure and maintain adequate liability insurance covering the Association, in an amount not less than $1,000,000.00. The Association shall also procure and maintain full replacement value hazard insurance on real and personal property owned by the Association, and shall procure and maintain officers’, directors' and employees’ liability insurance. The
nd maintain full replacement value hazard insurance on real and personal property owned by the Association, and shall procure and maintain officers’, directors' and employees’ liability insurance. The premiums for such insurance shall be a common expense paid from the annual assessments provided in Article V of this Declaration.
-14Section 8. Rules and Regulations. The Board of Directors shall have the authority to adopt additional rules and regulations governing the use of the Common Area and the Lots within the Subdivision and shall furnish a written copy of said rules and regulations to the Owner(s) of each Lot at least fifteen (15) days before such rules and regulations become effective. Any violation of such rules shall be punishable by fine and/or suspension of voting rights as provided in this Declaration.
In addition to any other rights and remedies that the Association may have under this Declaration, the Association may impose sanctions for violations of this Declaration, the Bylaws of the Association, the rules and regulations adopted Association, or the Restrictive Covenants applicable to the Properties, in accordance with procedures set forth in the Bylaws, which sanctions may include, but are not limited to, reasonable monetary fines, which fines shall constitute a lien upon the Lot of the violator, and suspension of the right to vote and the right to use any recreational facilities within the Common Area, provided, however, that the Association shall not have the right to suspend the right to use private streets providing access to an Owner’s Lot.
In addition, pursuant to procedures provided in the Bylaws, the Association may exercise self-help to cure violations (specifically including, but not limited to, the towing of Owner and tenant vehicles that
tion, pursuant to procedures provided in the Bylaws, the Association may exercise self-help to cure violations (specifically including, but not limited to, the towing of Owner and tenant vehicles that are in violation of parking rules) and may suspend the right of an Owner to use any open space and recreational facility within the Properties if the Owner is more than 30 days delinquent in paying any assessment or other charge due to the Association.
The Association shall at all times have the right and easement to go upon any Lot for the purposes of exercising its rights hereunder, including, but not limited to, enforcement of the architectural guidelines applicable to the Properties. Any entry onto any Lot for purposes of exercising this power of self-help shall not be deemed as trespass. All remedies set forth in this Declaration and the Bylaws shall be cumulative of any remedies available at law or in equity. In any action to enforce its rights and remedies, the party prevailing in such action shall be entitled to recover all costs, including, without limitation, attorneys’ fees and court costs, reasonably incurred in such action.
Section 9. Condemnation/Casualty. If all or any part of the Sub-Association Common Area and improvements thereon are taken by power of eminent domain or are damaged or destroyed by fire or other casualty, the proceeds of the condemnation award or any insurance policies covering such improvements shall be payable to the Association. The Board of Directors shall propose to the Members, at an annual or special meeting held within sixty (60) days after the date of the condemnation or casualty, whether or not to reconstruct the improvements. The insurance proceeds shall be used to reconstruct the
l or special meeting held within sixty (60) days after the date of the condemnation or casualty, whether or not to reconstruct the improvements. The insurance proceeds shall be used to reconstruct the improvements except as provided in §47F-3-113(g) of the Act, in which event the proceeds shall be retained by the Association for operation expenses or reserves, as determined by the Board or the Members.
Nothing in this Section shall prevent the Board from proposing and the Members from approving the use of such proceeds for construction of different improvements, e.g., playground on Sub-Association Common Area in lieu of a destroyed club house.
Section10. Association Contracts and Leases During Declarant Control Period. All Association contracts and leases made during the Declarant Control Period which extend beyond the Declarant Control Period must: (i) be for a term of two years or less; (ii) be terminable without penalty by the Association upon no more than ninety (90) days written notice; and (iii) be commercially reasonable and made with an entity not affiliated with the Declarant.
-15Section 11. Evidence of Member Approval. In the event that any action requires evidence of consent of the Members or a specified percentage of the Members, such approval shall be conclusively presumed if supported by a Certification signed by the President or Secretary of the Association in substantially the following form: CERTIFICATE OF THE CHADSFORD HOMEOWNERS ASSOCIATION, INC.
This is to certify that, upon proper notice given a [the] Special [Annual] Meeting of the Members of the Chadsford Homeowners Association, Inc., was held on [Date and Year] at [Time]. The purpose [One of the purposes] of the meeting, as set forth in the Notice of Meeting, was to: [State action for which
Chadsford Homeowners Association, Inc., was held on [Date and Year] at [Time]. The purpose [One of the purposes] of the meeting, as set forth in the Notice of Meeting, was to: [State action for which Member approval is required.] At such meeting, at which a quorum was present, in person or by proxy, a total of votes were cast: votes were cast in favor of such action, and votes were cast against such action.
Accordingly, the motion to approve [described the action approved] was approved by at least % of the Members as required by the Declaration and Bylaws of the Association.
[President/Secretary ] Section 12. | Number and Gender. Whenever the context requires, the singular shall included the plural, and vice versa, and one gender shall include all.
Section 13. Captions. Captions are for the purpose of reference only and shall not be deemed to be in any manner interpretive of any provision of this Declaration.
Section 14. Severability. If any provision of this Declaration is held by a court of competent jurisdiction to be invalid or void, such provision shall be deemed severable from the remaining provisions of the Declaration and shall not be deemed to nullify or affect and other provision hereof. If any such provision is deemed invalid due to its scope or breadth, such provision shall be deemed valid to the extent of the scope or breadth permitted by law.
If any item, term or provision contained in this Declaration is in conflict with any applicable federal, state or local laws, this Declaration shall be affected only as to its application to such item, term or provision, and shall in all other respects remain in full force and effect.
Section 15. Conflicts. In the event of a conflict between any provision of this Declaration and
cation to such item, term or provision, and shall in all other respects remain in full force and effect.
Section 15. Conflicts. In the event of a conflict between any provision of this Declaration and the Master Declaration, the more restrictive provision shall control. In the event of a conflict between this Declaration and the Article of Incorporation of the Association, the Articles of Incorporation shail control.
In the event of a conflict between this Declaration and the Bylaws, this Declaration shall control.
Specific provisions shall control general provisions. Notwithstanding the foregoing, a construction consistent with the Act, the North Carolina Nonprofit Corporation Act (N.C.G.S. Chapter -1655A), and the Durham City Code shall in all cases control over any construction inconsistent therewith.
The provisions of the Act and the Nonprofit Corporation Act shall in all cases control any conflicting provisions of the Durham City Code.
Section16. Rule Against Perpetuities. As provided in §47F-2-103(b) of the Act, the rule against perpetuities may not be applied to defeat any provision of the Declaration, Bylaws, or rules and regulations adopted pursuant to thereto and §47F-2-102(1) of the Act. In the absence of the protection provided in §47F-2-103(b) of the Act, if any provision of this Declaration violates any applicable rule against perpetuities, such provision shall be deemed amended to be and remain in effect for the maximum period of time that such provision could be in effect without violating the applicable rule against perpetuities.
IN WITNESS WHEREOF, Declarant has each caused this instrument to be executed under seal as of the date set forth in the notary acknowledgment below.
DECLARANT: OLDE SOUTH HOMES, INC., a North Carolina corporation By:
, Declarant has each caused this instrument to be executed under seal as of the date set forth in the notary acknowledgment below.
DECLARANT: OLDE SOUTH HOMES, INC., a North Carolina corporation By: BGI ICR CK IO OR GR IR AO SOR Ok RR ICR 2k 2k 2 Ae AE Ce Ra 2A Ee oe 2 oe ok a eo A 2 ke of Fe a Ee 2 OR He ke oR eo Ek STATE OF NORTH CAROLINA -- COUNTY OF WAKE I, the undersigned, certify that Carl F. Wiesner personally appeared before me this day and acknowledged that he is a Vice President of Olde South Homes, Inc., a North Carolina corporation, and that he, as Vice President, being authorized to do so, executed the foregoing on behalf of the corporation.
i Witness my hand and official stamp or seal, this the | [ day of February, 2005.
[Stamp or Seal] a “GER Cy.
HK QPERS Yer.
OLN NotargPublic "Comm + Y 4 My commission expires: ale ZO i Xp. } ZA i Me BINGO -|7EXHIBIT A CHADSFORD SUBDIVISION Lying and being in City of Durham, Triangle Township, Durham County, North Carolina, and being more particularly described as follows: All of Lot 2, containing 22.106 acres, more or less, shown and described on that certain plat entitled "Final Recombination Plat for Theodore Speight " by S. D. Puckett & Associates, Inc., recorded in Plat Book 158, Pages 215, DURHAM County Registry, to which plat reference is hereby made for a more particular description.
-18WILLIE L. COVINGTON REGISTER OF DEEDS, DURHAM COUNTY DURHAM COUNTY COURTHOUSE 200 E. MAIN STREET DURHAM, NC 27701 PLEASE RETAIN YELLOW TRAILER PAGE It is part of recorded document, and must be submitted with original for re-recording and/or cancellation.
Ju IES I I IU HO II JO II IIIS II TAA IAT TOA AC IAI ISIS ASTI AAT TATA IS UII ISO ISA II IIS AOI IS III ISA III Filed For Registration: 02/15/2005 01:56:51 PM
al for re-recording and/or cancellation.
Ju IES I I IU HO II JO II IIIS II TAA IAT TOA AC IAI ISIS ASTI AAT TATA IS UII ISO ISA II IIS AOI IS III ISA III Filed For Registration: 02/15/2005 01:56:51 PM Book: RE 4699 Page: 918-939 Document No.: 2005006561 DECL 22PGS $74.00 Recorder: SHARON A DAVIS KEKE HE RERERARRER ERE RRERERERERERERREKRUERUKEMRKRRERREREEER RERUN ERATE State of North Carolina, County of Durham The foregoing certificate of ROGER C. WHITE Notary is certified to be correct. This 15TH of February 2005 WILLIE L. NGTON , REGISTER OF DEEDS By: Ca Deputy/Aseietant Register of Deeds KARRI EIR ARERR RERERERR ERK EEE REE ERERREEERREREEERERREBREREREEREREKREEEREER EAR RRRKRERERERKERENRERRERER RETR RERERERE 2005006561