11.00 .50 1011 STATE OF NORTH CAROLINA : FILE NO.
Aug 194 35 PH '74 LOCLRAY REGISTRAR NEW HANOVER CO., N.C.
DECLARATION OF COVENANTS, COUNTY OF NEW HANOVER : CONDITIONS AND RESTRICTIONS THIS DECLARATION, made the 30th day of April, 1974, by WESTMINSTER COMPANY, a North Carolina Corporation, hereinafter referred to as "Declarant".
WITNESSETH: WHEREAS, Declarant is the owner of certain property in the City of Wilmington, County of New Hanover, State of North Carolina, which is more particularly described as: Section 1 of Stonesthrow as the same is shown on map recorded in Map Book 16 at Page 4 in the New Hanover County Registry, and as more fully described on the attached sheet marked "EXHIBIT A" which is to be taken as a part of this Declaration as though set out fully herein.
NOW, THEREFORE, Declarant hereby declares that all of the properties described above shall be held, sold and conveyed subject to the following easements, restrictions, covenants, and conditions, which are for the purpose of protecting the value and desirability of and which shall run with, the real property and be binding on all parties having any right, title or interest in the described properties or any part thereof, their heirs, successors and assigns, and shall inure to the benefit of each owner thereof.
ARTICLE I DEFINITIONS Section 1. "Association" shall mean and refer to Stonesthrow Homeowners Association, its successors and assigns.
Section 2. "Owner" shall mean and refer to the record owner, whether one or more persons or entities, of a fee simple title to any lot which is a part of the Properties, including contract sellers, but excluding those having such interest merely as security for the performance of an obligation.
Section 3.
"Properties" shall mean and refer to that certain
Properties, including contract sellers, but excluding those having such interest merely as security for the performance of an obligation.
Section 3.
"Properties" shall mean and refer to that certain real property hereinbefore described, and such additions thereto as may hereafter be brought within the jurisdiction of the Association.
Section 4. "Common Area" shali mean all real property owned by the Association for the common use and enjoyment of the owners. The Common Area to be owned by the Association at the time of the conveyance of the first lot is described as follows: 27 1012 15 The Common Area of Section 1 of STONESTHROW which is all of that area shown on map of Section 1 of STONESTHROW which is recorded in Map Book 16 at Page 4 in the New Hanover County Registry, with the exception of Lots 1 thru 8 andhrough 31 thru 43 inclusive as the same are shown on said map; with the exception further of the right of way of McMillan Street as shown on said map; and excepting further the rights of ways of any streets dedicated to public use that are shown on said map.
Section 1 of STONESTHROW Subdivision being more fully described on the attached sheet marked "EXHIBIT A" which is to be taken as a part of this description as though fully set out herein.
Section 5. "Lot" shall mean and refer to any plot of land shown upon any recorded subdivision map of the Properties with the exception of the Common Area.
Section 6. "Declarant" shall mean and refer to WESTMINSTER COMPANY, its successors and assigns if such successors or assigns should acquire more than one undeveloped Lot from the Declarant for the purpose of development.
ARTICLE II PROPERTY RIGHTS Section 1. Owners' Easements of Enjoyment. Every owner shall
ssors or assigns should acquire more than one undeveloped Lot from the Declarant for the purpose of development.
ARTICLE II PROPERTY RIGHTS Section 1. Owners' Easements of Enjoyment. Every owner shall have a right and easement of enjoyment in and to the Common Area which shall be appurtenant to and shall pass with the title to every Lot, subject to the following provisions: (a) The right of the Association to charge reasonable admission and other fees for the use of any recreational facility situated upon the Common Area; (b) The right of the Association to suspend the voting rights and right to use of the recreational facilities by an owner for any period during which any assessment against his Lot remains unpaid; and for a period not to exceed 60 days for any infraction of its published rules and regulations; (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 to by the members. No such dedication or transfer shall be effective unless an instrument signed by two-thirds (2/3) of each class of members agreeing to such dedication or transfer has been recorded.
Section 2. Delegation of Use. Any owner may delegate, in accordance with the By-Laws, his right of enjoyment to the Common Area and facilities to the members of his family, his tenants, or contract purchasers who reside on the property.
Section 1.
ARTICLE III MEMBERSHIP AND VOTING RIGHTS Every owner of a lot which is subject to assessment 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.
-2Section 2.
voting embership: 061012 PA 16
hall 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.
-2Section 2.
voting embership: 061012 PA 16 The Association shall have two classes of Class A.
Class A members shall be all Owners with the exception of the Declarant and shall be entitled to one vote for each Lot owned. When more than one person holds an interest in any Lot, all such persons shall be members. The vote for such Lot shall be exercised as they among themselves determine, but in no event shall more than one vote be cast with respect to any Lot.
Class B.
The Class B member (s) shall be the Declarant and shall be entitled to three (3) votes for each Lot owned. The Class B membership shall cease and be converted to Class A membership on the happening of either of the following events, whichever occurs earlier: (a) When the total votes outstanding in Class A membership equal the total votes outstanding in the Class B membership, or (b) Upon six years after the date of this Declaration.
ARTICLE IV COVENANTS FOR MAINTENANCE ASSESSMENTS Section 1.
Creation of the Lien and Personal Obligation of Assessments. The Declarant, for each Lot owned 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: (1) annual assessments or charges, and (2) special assessments for capital improvements, such assessments to be established and collected as hereinafter provided. The annual and special assessments, together with interest, costs, and reasonable attorney's fees, shall be a charge on the land and shall be a continuing lien upon the property
hereinafter provided. The annual and special assessments, together with interest, costs, and reasonable attorney's fees, shall be a charge on the land and shall be a continuing lien upon the property against which each assessment is made. Each such assessment, together with interest, costs, and reasonable attorney's fees, shall also be the personal obligation of the person who was the Owner of such property at the time when the assessment fell due. The personal obligation for delinquent assessments shall not pass to his successors in title unless expressly assumed by them.
Section 2. Purpose 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 the acquisition, improvement and maintenance of properties, services and facilities devoted to this purpose and related to the exterior maintenance of the homes situated upon the Properties or for the use and enjoyment of the Common Area, including but not limited to, the cost of repairs, replacements and additions, the cost of labor, equipment, materials, management and supervision, the payment of taxes assessed against the Common Area, the procurement and maintenance of insurance in accordance with the By-Laws, the payment of charges for water furnished and water and sewer services rendered to the Properties, the employment of attorneys to represent the Association when necessary, and such other needs as may arise.
-3101217 Section 3.
Maximum Annual Assessment.
Until January 1 of the year immediately following the conveyance of the first Lot to an Owner, the maximum annual assessment shall be Four Hundred Twenty Dollars ($420.00) per Lot.
(a) From and after January 1 of the year
e year immediately following the conveyance of the first Lot to an Owner, the maximum annual assessment shall be Four Hundred Twenty Dollars ($420.00) per Lot.
(a) From and after January 1 of the year immediately following the conveyance of the first Lot to an Owner, the maximum annual assessment may be increased each year not more than 5% above the maximum assessment for the previous year without a vote of the membership.
(b) From and after January 1 of the year immediately following the conveyance of the first Lot to an Owner, the maximum annual assessment may be increased above 5% by a vote of twothirds (2/3) of each class of members who are voting in person or by proxy, at a meeting duly called for this purpose.
(c) The Board of Directors may fix the annual assessment at an amount not in excess of the maximum.
(d) Any portion of the annual assessments fixed and levied hereunder to defray water and sewer charges shall, when collected, be segregated from the remaining annual assessment funds and shall be retained in a separate bank account until expended on the water and sewer charges. Any funds remaining in such bank account at the end of a calendar year shall be used to defray water and sewer charges for the next succeeding year.
-3A101218 In Section 4. Special Assessments for Capital Improvements.
addition to the annual assessments authorized above, the Association may levy, in any assessment year, a special assessment applicable to that year only 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, provided that any such assessment shall have the
ction, reconstruction, repair or replacement of a capital improvement upon the Common Area, including fixtures and personal property related thereto, provided that any such assessment shall have the assent of two-thirds (2/3) of the votes of each class of members who are voting in person or by proxy at a meeting duly called for this purpose.
Section 5. Notice and Quorum for Any Action Authorized Under Sections 3 and 4. Written notice of any meeting called for the purpose of taking any action authorized under Section 3 or 4 shall be sent to all members not less than 30 days nor more than 60 days in advance of the meeting. At the first such meeting called, the presence of members or of proxies entitled to cast sixty percent (60%) of all the votes of each class of membership shall constitute a quorum. If the required quorum is not present, another meeting may be called subject to the same notice requirement, and the required quorum and the subsequent meeting shall be one-half (1/2) of the required quorum at the preceding meeting. No such subsequent meeting shall be held more than 60 days following the preceding meeting.
Section 6.
Both annual and special assessments must be fixed at a uniform rate for all lots within the same class and may be collected on a monthly basis. All lots owned by the Class B member, which is the Declarant, shall be assessed for both annual and/or special assessments at one-half or fifty percent of the assessment for lots owned by Class A members, but such fifty percent assessment ratio shall terminate immediately upon the transfer of any lot from the Class B member to a Class A member.
Due Section 7. Date of Commencement of Annual Assessments: Dates. The annual assessments provided for herein shall commence as to
n the transfer of any lot from the Class B member to a Class A member.
Due Section 7. Date of Commencement of Annual Assessments: Dates. The annual assessments provided for herein shall commence as to all Lots on the first day of the month following the conveyance of the Common Area. The first annual assessment shall be adjusted according to the number of months remaining in the calendar year. The Board of Directors shall fix the amount of the annual assessment against each Lot at least thirty (30) days in advance of each annual assessment period. Written notice of the annual assessment shall be sent to every Owner subject thereto.
The due dates shall be established by the Board of Directors and the Board of Directors shall have the authority to require the assessments to be paid in pro-rata monthly installments. The Association shall, upon demand, and for a reasonable charge, furnish a certificate signed by an officer of the Association setting forth whether the assessments on a specified Lot have been paid.
Section 8. Effect of Nonpayment of Assessments: Remedies of the Association. Any assessment not paid within thirty (30) days after the due date shall bear interest from the due date at the rate of 6 percent per annum. The Association may bring an action at law against the Owner personally obligated to pay the same, or foreclose the lien against the property. No owner may waive or otherwise escape liability for the assessments provided for herein by non-use of the Common Area or abandonment of his Lot.
Section 9. Subordination of the Lien to Mortgages. The lien of the assessments provided for herein shall be subordinate to the lien of any first mortgage. Sale or transfer of any Lot shall not affect the
tion 9. Subordination of the Lien to Mortgages. The lien of the assessments provided for herein shall be subordinate to the lien of any first mortgage. Sale or transfer of any Lot shall not affect the assessment lien. However, the sale or transfer of any Lot pursuant to mortgage foreclosure or any proceeding in lieu thereof, shall extinguish the lien of such assessments as to payments which became due prior to such sale or transfer. No sale or transfer shall relieve such Lot from liability for any assessments thereafter becoming due or from the lien thereof.
-4' BOOK 1012 PATE 19 ARTICLE V ARCHITECTURAL CONTROL No building, fence, wall or other structure shall be commenced, erected or maintained upon the Properties, nor shall any exterior addition to or change or alteration therein be made until the plans and specifications showing the nature, kind, shape, height, materials, and location of the same shall have been submitted to and approved in writing as to harmony of external design and location in relation to surrounding structures and topography by the Board of Directors of the Association, or by an architectural committee composed of three (3) or more representatives appointed by the Board. In the event said Board, or its designated committee, fails to approve or disapprove such design and location within thirty (30) days after said plans and specifications have been submitted to it, approval will not be required and this Article will be deemed to have been fully complied with.
ARTICLE VI PARTY WALLS Section 1. General Rules of Law to Apply. Each wall which is built as a part of the original construction of the homes upon the Properties and placed on the dividing line between the Lots shall constitute
n 1. General Rules of Law to Apply. Each wall which is built as a part of the original construction of the homes upon the Properties and placed on the dividing line between the Lots shall constitute a party wall, and, to the extent not inconsistent with the provisions of this Article, the general rules of law regarding party walls and of liability for property damage due to negligence or willful acts or omissions shall apply thereto.
Section 2. Sharing of Repair and Maintenance. The cost of reasonable repair and maintenance of a party wall shall be shared by the Owners who make use of the wall in proportion to such use.
Section 3. Destruction by Fire or Other Casualty.
If a party wall is destroyed or damaged by fire or other casualty, any Owner who has used the wall may restore it, and if the other Owners thereafter make use of the wall, they shall contribute to the cost of restoration thereof in proportion to such use without prejudice, however, to the right of any such Owners to call for a larger contribution from the others under any rule of law regarding liability for negligent or willful acts or omissions.
Section 4. Weatherproofing. Notwithstanding any other provision of this Article, an Owner who by his negligent or willful act causes the party wall to be exposed to the elements shall bear the whole cost of furnishing the necessary protection against such elements..
Section 5. Right to Contribution Runs with Land. The right of any Owner to contribution from any other Owner under this Article shall be appurtenant to the land and shall pass to such Owner's successors in title.
Section 6. Arbitration. In the event of any dispute arising concerning a party wall, or under the provisions of this Article, each
enant to the land and shall pass to such Owner's successors in title.
Section 6. Arbitration. In the event of any dispute arising concerning a party wall, or under the provisions of this Article, each party shall choose one arbitrator, and such arbitrators shall choose one additional arbitrator, and the decision shall be by a majority of all the arbitrators.
ARTICLE VII EXTERIOR MAINTENANCE In addition to maintenance upon the Common Area, the Association shall provide exterior maintenance upon each Lot which is subject to assessment hereunder, as follows: paint, repair, replace and care of roofs, gutters, downspouts, exterior building surfaces, trees, shrubs, walks, and other exterior improvements. Such exterior maintenance grass, shall not include glass surfaces.
-5BOOK 1012 20 In the event that the need for maintenance, repair, or replacement is caused through the willful, or negligent act of the Owner, his family, guests, or invitees, or is caused by fire, lightning, windstorm, hail, explosion, riot, riot attending a strike, civil commotion, aircraft, vehicles, and smoke, as the foregoing are defined and explained in North Carolina Standard Fire and Extended Coverage insurance policies, the cost of such maintenance, replacement, or repairs shall be added to and become a part of the assessment to which the Lot is subject. In order to enable the Association to accomplish the foregoing, there is hereby reserved to the Association the right to unobstructed access over and upon each Lot at all reasonable times to perform maintenance as provided in this Article.
ARTICLE VIII USE RESTRICTIONS Section 1. Land Use and Building Type. No Lot shall be used except for residential purposes. No building shall be erected, altered,
intenance as provided in this Article.
ARTICLE VIII USE RESTRICTIONS Section 1. Land Use and Building Type. No Lot shall be used except for residential purposes. No building shall be erected, altered, placed, or permitted to remain on any lot other than one single family townhouse dwelling not to exceed two and one-half stories in height. Any building erected, altered, placed, or permitted to remain on any Lot shall be subject to the provisions of Article V of this Declaration of Covenants, Conditions and Restrictions relating to architectural control.
Section 2. Nuisances. No noxious or offensive activity shall be carried on upon any Lot, nor shall anything be done thereon which may be or may become an annoyance or nuisance to the neighborhood.
Section 3. Temporary Structures. No structure of a temporary character, trailer, basement, tent shack, garage, barn or other outbuilding shall be used on any lot at any time as a residence either temporarily or permanently.
ARTICLE IX EASEMENTS Easements for installation and maintenance of utilities and drainage facilities are reserved as shown on the recorded plat. Within these easements, no structure, planting or other material shall be placed or permitted to remain which may interfere with the installation and maintenance of utilities, or which may change the direction of flow of drainage channels in the easements, or which may obstruct or retard the flow of water through drainage channels in the easements.
ARTICLE X ANNEXATION OF ADDITIONAL PROPERTIES Section 1. Annexation of additional property shall require the consent of two-thirds (2/3) of the Class A members and two-thirds (2/3) of the Class B members, if any, at a meeting duly called for this purpose,
. Annexation of additional property shall require the consent of two-thirds (2/3) of the Class A members and two-thirds (2/3) of the Class B members, if any, at a meeting duly called for this purpose, written notice of which shall be sent to all members not less than 30 days nor more than 60 days in advance of the meeting. The presence of members or of proxies entitled to cast sixty percent (60%) of the votes of each class of membership shall constitute a quorum. If the required quorum is not forthcoming at any meeting, another meeting may be called subject to the notice requirement set forth above and the required quorum at each subsequent meeting shall be one-half of the required quorum of the preceding meeting. No such subsequent meeting shall be held more than 60 days following the preceding meeting. In the event that two-thirds (2/3) of the Class A membership or two-thirds (2/3) of the Class B membership are not present in person or by proxy, members not present may give their written assent to the action taken thereat.
-600101221 Section 2. If within ten years of the date of incorporation of this Association, the Declarant shall develop additional lands within the area described in Deed Book 978 at Page 75 in the Office of the Register of Deeds of New Hanover County, North Carolina, such additional lands may be annexed to said Properties without the assent of the Class A members, provided however, the development of the additional lands described in this section shall be in accordance with a general plan submitted to the Federal Housing Administration and the Veterans Administration with the processing papers for the first section. Detailed plans for the development of additional lands must be submitted to the Federal
deral Housing Administration and the Veterans Administration with the processing papers for the first section. Detailed plans for the development of additional lands must be submitted to the Federal Housing Administration and the Veterans Administration prior to such development. If either the Federal Housing Administration or the Veterans Administration determines that the detailed plans are not in accordance with the general plan on file and either agency so advises the Association and the Declarant, the development of the additional lands must have the assent of two-thirds (2/3) of the Class A members who are voting in person or by proxy at a meeting duly called for this purpose, written notice of which shall be sent to all members not less than 30 days nor more than 60 days in advance of the meeting setting forth the purpose of the meeting.
At this meeting, the presence of members or of proxies entitled to cast sixty percent (60%) of all of the votes of the Class A membership shall constitute a quorum. If the required quorum is not forthcoming at any meeting, another meeting may be called, subject to the notice requirement set forth above, and the required quorum at any such subsequent meeting shall be one-half (1/2) of the required quorum at the preceding meeting.
No such subsequent meeting shall be held more than 60 days following the preceding meeting.
ARTICLE XI GENERAL PROVISIONS Section 1. Enforcement. The Association, or any Owner, shall have the right to enforce, by any proceeding at law or in equity, all restrictions, conditions, covenants, reservations, liens and charges now or hereafter imposed by the provisions of this Declaration. Failure by the Association or by any Owner to enforce any covenant or restriction
conditions, covenants, reservations, liens and charges now or hereafter imposed by the provisions of this Declaration. Failure by the Association or by any Owner to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter.
Section 2. Severability. Invalidation of any one of these covenants or restrictions by judgment or court order shall in no wise affect any other provisions which shall remain in full force or effect.
Section 3. Amendment. The covenants and restrictions of this Declaration shall run and bind the land, and shall inure to the benefit of and be enforceable by the Association, or the Owner of any Lot subject to this Declaration, their respective legal representatives, heirs, successors, and assigns, for a term of twenty (20) years from the date this Declaration is recorded, after which time said covenants shall be automatically extended for successive periods of ten (10) years. The covenants and restrictions of this Declaration may be amended during the first twenty (20) year period by an instrument signed by not less than ninety per cent (90%) of the Lot Owners, and thereafter by an instrument signed by not less than seventy-five per cent (75%) of the Lot Owners, provided that no amendment shall alter any obligation to pay ad valorem taxes or assessments for public improvements, as herein provided, or affect any lien for the payment thereof established herein.
Any amendment must be properly recorded.
Section 4. FHA/VA Approval. As long as there is a Class B membership, the following actions will require the prior approval of the Federal Housing Administration or the Veterans Administration: annexation of additional properties, dedication of Common Area, and amendment of this -7-
actions will require the prior approval of the Federal Housing Administration or the Veterans Administration: annexation of additional properties, dedication of Common Area, and amendment of this -7BOOK 1012 MALE 22 Declaration of Covenants, Conditions and Restrictions.
Section 5. The Association acting through its officers, agents, servants, and/or employees shall have the right of unobstructed access to all reasonable times to all properties as may be reasonably necessary to perform the exterior maintenance called for in Article VII of this Declaration.
$ ARTICLE XII PARKING Section 1. Parking Rights.
of Stonesthrow Subdivision shall entitle the Owner or Owners thereof to Ownership of each Lot in Section 1 the exclusive use of not more than two automobile parking spaces, which shall be as near and convenient to the Lot as reasonably possible, together with the right of ingress and egress in and upon said parking area. The Association shall permanently assign one vehicle parking space for each dwelling.
IN WITNESS WHEREOF, WESTMINSTER COMPANY, the Declarant herein, has caused this Declaration to be signed in its corporate name by its President and attested by its Secretary and sealed with its corporate seal, all on the day and year first above written.
INSTER ATTEST SCAL Mary "CMPANY" WESTMINSTER COMPANY By: Vice President Secretary STATE OF NORTH CAROLINA I, Car P COUNTY OF Builford and County aforesaid, certify that may sup Notary Public in and for the State personally came before me this day and acknowledged that she is assistent Secretary of WESTMINSTER COMPANY, A North Carolina Corporation with its principal office in builford County, and that by authority duly given and as the act of the Corporation, the foregoing instrument was signed in
STMINSTER COMPANY, A North Carolina Corporation with its principal office in builford County, and that by authority duly given and as the act of the Corporation, the foregoing instrument was signed in its name by its fice President, sealed with the Corporate Seal, and attested by Yel as its (Secretary.
1974.
FOR?
WITNESS my hand and Notarial Seal, this the 33 day of OLY commission expires: 1975 Acreler P STATE OF NORTH CAROLINA New Hanover County The Foregcing Certificate of Carolyn P. Sharpe, Notary Public is certified to be correct.
This the 19 day of August Notary Public 174 Drawn By Calder & Stanley.
Lois C. LeRay, Register of Dede Ny Spis. M. Holland, Quest May.
: = BOOK 1012 23 "EXHIBIT A" In the City of Wilmington in New Hanover County, North Carolina, and more particularly described as follows: Beginning at the point of curve where of McMillan Street intersects the Northern line of the Westminster Company "Stonesthrow" tract which is also the Southern line of property of the University of North Carolina at Wilmington and running thence from said beginning point and along said dividing line South 53° 47' East 809.58 feet; thence South 36° 00' West 153.0 feet; thence South 21° 36' 45" East 324.50 feet; thence North 62° 19' 15" West 80.1 feet; thence South 67° 00' West 110.0 feet; thence South 26° 00' West 34.44 feet; thence North 63° 01' West 288.04 feet to a point in the Eastern line of McMillan Street; thence Northwardly along said Eastern line of McMillan Street as it curves to the West to a point that bears North 16° 59' 30" East 157.66 feet from the last mentioned point; continuing thence along the Eastern line of McMillan Street as it curves to the West in a Northward direction to the point of beginning which
6° 59' 30" East 157.66 feet from the last mentioned point; continuing thence along the Eastern line of McMillan Street as it curves to the West in a Northward direction to the point of beginning which bears North 23° 22' 30" West a distance of 717.99 feet from the last mentioned point.
Received and Recorded August 19, 1974 4:30 PM L Register of Deeds 9 8