36 11000 Drawn by and Return to: Moore & Alphin, PLLC 3716 National Dr., Ste 100, Raleigh NC 27612 Book 6220 Page 2828 BK: RB 6220 PG: 2828-2864 RECORDED: 06-07-2019 12:31:34 PM 2019016958 NEW HANOVER COUNTY, NC BY: ANGELA ENGLISH TAMMY THEUSCH BEASLEY REGISTER OF DEEDS DEPUTY DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS, EASEMENTS, CHARGES AND LIENS FOR VILLAGES AT PLANTATION LANDING THIS DOCUMENT REGULATES OR PROHIBITS THE DISPLAY OF POLITICAL SIGNS.
1 NC FEE $110.00 Book 6220 Page 2829 DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS, EASEMENTS, CHARGES AND LIENS FOR VILLAGES AT PLANTATION LANDING THIS DECLARATION is made on the date hereinafter set forth by Clayton Properties Group, Inc., a Tennessee corporation, doing business as Mungo Homes (hereinafter "Declarant").
PREAMBLE: WHEREAS, Declarant is the owner of approximately 8.70 acres of land located New Hanover County, North Carolina, described in that deed recorded in Book 6182, Page 1125, New Hanover County Registry, and being more described in Exhibit A attached hereto and incorporated herein, all or portions of which Declarant intends to develop into a planned community of attached single-family townhomes known as Villages at Plantation Landing (hereinafter sometimes referred to as the "Subdivision"); and WHEREAS, Declarant desires to provide for the maintenance and upkeep of Common Area (hereinafter defined) within the Subdivision, and to provide for enforcement of covenants and restrictions applicable to 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 such property and each owner thereof; and
ubdivision to the covenants, conditions, restrictions, easements, charges and liens hereinafter set forth, each and all of which is and are for the benefit of such property and each owner thereof; and WHEREAS, Declarant has deemed 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 incorporated under North Carolina law as a nonprofit corporation, Villages at Plantation Landing Homeowners Association, Inc., for the purpose of exercising the aforesaid functions; and 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, 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.
2 Book 6220 Page 2830 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, as the same may be amended from
ion 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, as the same may be amended from time to time.
Section 2.
"Association" shall mean and refer to the VILLAGES AT PLANTATION LANDING HOMEOWNERS ASSOCIATION, INC. a North Carolina nonprofit corporation, its successors and assigns.
Section 3.
"Board of Directors" and "Board" (the terms being used interchangeably) 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, and is the "Executive Board" as defined in the Act.
Section 4.
"Builder" shall mean and refer to one or more Persons in the business of building and selling homes to individuals and selected by Declarant to purchase Lots and construct homes for sale in the Property.
Section 5.
from time to time.
Section 6.
"Bylaws” shall mean and refer to the Bylaws of the Association, as amended "County" shall mean and refer to the New Hanover County, North Carolina, and its regulatory agencies as appropriate.
Section 7.
"Code" shall mean and refer to the New Hanover, North Carolina, Code of Ordinances, as amended from time to time and includes all duly adopted regulations, rules, directives, and policies of the County pursuant to or in furtherance of the Code.
Section 8. "Common Area" or "Common Property" (such terms being used interchangeably) shall mean and refer to the real property, together with any improvements thereon, owned by the Declarant or by the Association, whether in fee or by easement, for the common benefit of the Owners of Lots within the Subdivision, and specifically including, without limitation,
ereon, owned by the Declarant or by the Association, whether in fee or by easement, for the common benefit of the Owners of Lots within the Subdivision, and specifically including, without limitation, all private streets, curbs and sidewalks within the Subdivision, the area within any storm water easements and the facilities constructed therein which serve more than one Lot and are not maintained by any governmental authority, all centralized mail box units or kiosks installed for use by the U.S. Postal Service and Owners and water and sewer lines (and the easements associated therewith) which serve more than one Lot and are not located within a public utility easement or a public street right-of-way. 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.
3 Book 6220 Page 2831 Common Area may be owned or leased by the Association or it may be owned by another Person with the Association having a right or easement therein (for example, part or all of a private storm water drainage easement located on either a Lot or real property that is not part of the Properties and that serves more than one Lot in the Properties or a right of the Association to use of a portion of a public street right-of-way pursuant to an encroachment agreement with the County).
Without limiting the generality of the foregoing, Common Area, and the Association's responsibility for maintenance, includes, without limitation, any Stormwater Control Measures and Stormwater Control Facilities (defined below) within and/or serving the Properties, recreational amenities that the Declarant may construct, street trees along the rights-of-way of public streets, and
Stormwater Control Facilities (defined below) within and/or serving the Properties, recreational amenities that the Declarant may construct, street trees along the rights-of-way of public streets, and all islands and other landscaped areas within the public streets within the Properties.
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, or conveyed to another non-profit corporation organized for such purposes.
Common Area, if any, established by the Declarant or the Association for the benefit of fewer than all of the Owners and occupants of the Properties is "Limited Common Area", and such Limited Common Area and the Owners and occupants of the applicable portion of the Properties for whose benefit the Limited Common Area exists are subject to the same provisions as those applicable to Common Area.
Section 9.
"Common Area Easement" shall mean and refer to Common Area as to which the Association has only an easement interest, and not a fee simple interest.
Section 10.
"Common Expense" shall mean and refer to all of the expenses incurred by the Association in furtherance of its rights and responsibilities under the Act, the Code, and the Governing Documents and including specifically, but without limitation, all of the following: (Expenses for the maintenance of Limited Common Area are "Limited Common Expenses", which is a subcategory of Common Expense): (a) (b) (c) (d) Expenses of administration, inspection and maintenance of the Common Property, including, without limitation, Stormwater Control Measures; Expenses classified as Common Expenses under the Act, the Code, or under the provisions of this Declaration or other Governing Documents;
y, including, without limitation, Stormwater Control Measures; Expenses classified as Common Expenses under the Act, the Code, or under the provisions of this Declaration or other Governing Documents; Expenses for acquisition, maintenance, repair, restoration, replacement, use and operation of personal property owned or leased by the Association for the benefit of the Members; Premiums for property, liability or such other insurance premiums as this Declaration or other Governing Documents may require the Association to purchase; Ad valorem taxes and public assessments and charges lawfully levied against any Common Property owned in fee simple by the Association; (e) (f) (g) Fees or charges for utilities used in connection with the Common Property; Costs of collection of assessments (dues) from the Members; (h) (i) (j) Any unpaid Association assessment following the foreclosure of a first mortgage or first deed of trust or an assessment lien; Allocations to reserve funds; Payments to the County pursuant to any Stormwater Agreement; 4 Book 6220 Page 2832 (1) 20 (k) (m) (n) (0) Fees for professional and other services engaged by the Association; Costs and expenses for which the Association is obligated under any encroachment agreement or other agreement with the County or other Governmental Entity; Financial obligations of the Association or financial obligations of Members with respect to which the Association has responsibility for collection and payment; Expenses incurred by the Association in performing its functions and providing services, including operating, management, enforcement and administrative expenses; and Expenses agreed by the Members to be Common Expenses of the Association.
performing its functions and providing services, including operating, management, enforcement and administrative expenses; and Expenses agreed by the Members to be Common Expenses of the Association.
Section 11. "Declarant" shall mean and refer to Clayton Properties Group, Inc., a Tennessee corporation, doing business as Mungo Homes. It shall also mean and refer to any person, firm or corporation to whom or which Declarant may assign or delegate the rights and obligations of Declarant by an assignment of Declarant's rights recorded in the New Hanover County Registry.
Section 12.
"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) (b) (c) December 31, 2039; the later of 120 days or the annual meeting after the date on which one hundred percent (100%) of the Lots in all phases of the Subdivision that may ultimately be subjected to this Declaration have been conveyed to a Class A Member; or Relinquishment or transfer of all Special Declarant Rights as provided in §47F-3-104(c) of the Act.
Section 13. "Declaration” shall mean and refer to this "Declaration of Covenants, Conditions, Restrictions, Easements, Charges and Liens for Villages at Plantation Landing", and all amendments thereto and supplements thereof.
Section 14. "Developer's Operational Agreement” shall mean and refer to that certain agreement between Declarant and the North Carolina Environmental Management Commission dated December 19, 2018, attached to this Amendment as "Exhibit B."
Section 15. "Disposal System” shall mean and refer to the wastewater system described
h Carolina Environmental Management Commission dated December 19, 2018, attached to this Amendment as "Exhibit B."
Section 15. "Disposal System” shall mean and refer to the wastewater system described in the Developer's Operational Agreement. The Disposal System is a Common Area of the Property and shall at all times be maintained and operated in strict compliance with the Developer's Operational Agreement.
Section 16. "Dwelling", "Dwelling Unit" and "Unit" shall mean and refer to any building or portion thereof within the Properties which is used or occupied, or intended for use or occupancy, as a residence by an individual or by one family unit, whether by the Owner thereof or by tenants or lessees of the Owner. A Dwelling shall be deemed to constitute a Dwelling upon issuance of a certificate of occupancy therefor.
5 Book 6220 Page 2833 Section 17. “Governmental Authority" shall mean any applicable County, City, and all other governmental entities or quasi-governmental entities having jurisdiction over the Properties or any part thereof, and all applicable departments, divisions, sections, branches, agencies, and subdivisions of such Governmental Authority.
Section 18. "Lot” shall mean and refer to any plot of land, with delineated boundary lines, shown on any recorded subdivision map of any portion of the Subdivision (regardless of whether the Lot has been subjected to this Declaration as provided in Article II hereof) and intended for the construction thereon of a Dwelling, with the exception of any Common Area owned in fee by the Association, and any street rights-of-way shown on such recorded map. In the event that any Lot is increased or decreased in size by recombination or re-subdivision through recordation of a new
by the Association, and any street rights-of-way shown on such recorded map. In the event that any Lot is increased or decreased in size by recombination or re-subdivision through recordation of a new subdivision plat, any newly-platted lot shall thereafter constitute a Lot.
Section 19.
"Member" shall mean and refer to every person or entity who or which holds membership in the Association.
Section 20. "Owner" shall mean and refer to the record owner, whether one or more persons or entities, of fee simple title to any Lot or Development Parcel 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 21.
"Properties" shall mean and refer to the "Existing Property" described in Article II of this Declaration and any additional property annexed pursuant to said Article II.
Section 22. "Sub-Association" shall mean and refer to a North Carolina nonprofit corporation organized and existing under the Act for the purpose of owning, managing and/or maintaining that Sub-Association's Common Property (including, with respect to a condominium, its common elements). The term Sub-Association including a property owners association for a townhome and condominium unit owners association. Any and all assessments imposed upon the Members of the Sub-Association by the documents establishing or governing such Sub-Association shall be in addition to any and all assessment imposed by this Declaration.
Section 1.
ARTICLE II PROPERTY SUBJECT TO THIS DECLARATION AND WITHIN THE JURISDICTION OF THE VILLAGES AT PLANTATION LANDING HOMEOWNERS ASSOCIATION, INC.
Existing Property. The real property which, at the time of recording of this
SUBJECT TO THIS DECLARATION AND WITHIN THE JURISDICTION OF THE VILLAGES AT PLANTATION LANDING HOMEOWNERS ASSOCIATION, INC.
Existing Property. The real property which, at the time of recording of this Declaration, 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 by Declarant. At any time prior to the applicable date under Section 3(a), additional land may be annexed by the Declarant without the consent of the Members and, therefore, become subject to this Declaration by the recording by 6 Book 6220 Page 2834 Declarant 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 subjected to this Declaration (or separated from such property only by the right-of-way of a street or road) and further provided that such annexation must be approved, if required, by the County of New Hanover and by the Federal Housing Administration and/or Secretary of Veterans Affairs. 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. Prior to the conveyance of the first Lot within any newly annexed property to an Owner other than Declarant, 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
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.
Section 1.
ARTICLE III MEMBERSHIP AND VOTING RIGHTS Membership. Declarant and 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.
The foregoing is not intended to include persons or entities who hold an interest merely as security for the performance of an obligation.
Section 2.
Voting Rights. The voting rights of the membership shall be appurtenant to the ownership of the Lots.
There shall be TWO (2) classes of membership with respect to voting rights: (a) Class A Members. Class A Members shall be the Owners of all Lots except those owned by the Class B Members (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. Lots owned by Class A Members shall be "Class A Lots".
(b) Class B Member. The Class B Member shall be the Declarant, and any successor. Subject to the provisions of this subsection, Declarant shall be entitled to nine (9) votes for each Lot that it owns (each such Lot being a “Class B Lot"). Assessment of Class B Lots is
ny successor. Subject to the provisions of this subsection, Declarant shall be entitled to nine (9) votes for each Lot that it owns (each such Lot being a “Class B Lot"). Assessment of Class B Lots is governed by the provisions of Article V of this Declaration. Upon expiration of the Declarant Control Period, Declarant shall have one vote for each Lot that it owns; however, such Declarantowned Lots shall continue to be treated as Class B Lots for assessment purposes.
Section 3.
Declarant's Right to Appoint Directors and Officers of the Association.
Notwithstanding any other provision of this Declaration or the Bylaws, until the expiration of the Declarant Control Period, Declarant may, in its discretion, appoint and remove all of the directors 7 Book 6220 Page 2835 and officers of the Association. Declarant's intent to exercise or continue to exercise that right may be set forth in the notice of each annual meeting of the Members. See §47F-3-103(d) of the Act.
Section 4. 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 Dwelling within the Properties is leased for rental purposes to tenants, the vote as expressed by the Owners of such vacant and rental units shall not be entitled to any weight greater than forty-nine percent (49%) on any matter pending before the Association. This Section applies only to Lots and Dwellings owned by a Class A Member and specifically excludes Lots and Dwellings owned by the Declarant.
Section 5.
Legal Actions Against Declarant and Owners. The affirmative vote or consent of the Owners that is equal to or greater than sixty-seven percent (67%) of the total number
ed by the Declarant.
Section 5.
Legal Actions Against Declarant and Owners. The affirmative vote or consent of the Owners that is equal to or greater than sixty-seven percent (67%) of the total number of votes in the Association first shall be required prior to the Association doing any or all of the following with respect to the Declarant, any successor Declarant, any Owner or any Member regardless of whether such Person is the Declarant or is an Owner or Member at the time the Association takes the action or obtains the necessary vote or consent required to take such action: (i) file a complaint, on account of any act or omission with any Governmental Entity which has regulatory or judicial authority over the Properties or any part thereof; or (ii) assert a claim against, sue or request legal or equitable relief against Declarant, Owner or Member in any court, before any Governmental Entity board, or otherwise, provided however, nothing contained in this section shall be construed to require said number of votes for any lien enforcement actions arising out of Article V.
Section 1.
ARTICLE IV PROPERTY RIGHTS Owners' Easements of Enjoyment and Access. Except as limited by Section 2 of this Article IV and by rules and regulations adopted by the Members and/or the Board of Directors, 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 use of any facilities 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
s for the use of any facilities 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.
(b) the right of the Association, after notice and an opportunity to be heard, to suspend the voting rights of an Owner and the right of an Owner to use the Common Area and facilities thereon for any period during which any assessment against his Lot remains unpaid for a period of thirty (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, provided, however that the Association may not suspend an Owner's right to use of any Common Area providing access or utilities to his Lot.
(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 8 Book 6220 Page 2836 unless Members entitled to at least eighty percent (80%) of the votes of the entire membership of the Association agree to such dedication, sale or transfer, 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 and drainage facilities 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
he 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 County or other governmental entity or to a nonprofit entity organized for purposes similar to those of the Association.
(d) the right of the Association, with the assent of Members entitled to at least eighty percent (80%) of the votes of the entire membership 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 to exchange all or part of the Common Area for other property and consideration of like value and utility, provided that such exchange is approved by a vote of the Members at a meeting of Members, one of the purposes of which is to vote on the exchange, and, if required, by the County.
Section 2.
(a) Delegation of Use.
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.
(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 such Owner's Unit, or a portion thereof, as their principal residence.
(c)
d to every Owner by Section 1 of this Article may be delegated by such Owner to his tenants or contract purchasers who occupy such Owner's Unit, or a portion thereof, as their principal residence.
(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, prior to the conveyance of the last Lot within any phase of the Subdivision to an Owner, Declarant will convey to the Association title to those portions of the Common Area located in that phase which are to be owned by the Association. Declarant hereby reserves and grants (regardless of whether or not such reservation and grant is specifically set forth in such deed), for itself, any Builder and each of their respective successors and assigns, an easement over, under, across and through the Common Area so long as any of them own any Lot within the Properties, for the purpose of constructing any improvements on the Common Area and/or the Lots as it or they deem necessary or advisable; provided that, following construction of improvements, the Common Area shall be restored to its prior condition to the extent practicable. 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 9 Book 6220 Page 2837 2 of Chapter 44A of the North Carolina General Statutes) except this Declaration, restrictive
and liens (including statutory liens of laborers and materialmen pursuant to Article 9 Book 6220 Page 2837 2 of Chapter 44A of the North Carolina General Statutes) except this Declaration, restrictive covenants applicable to the Properties, utility, drainage, conservation, greenway and other easements of record or shown on the recorded plats of the Properties, and the lien of ad valorem taxes not yet due and payable. Any improvements placed on the Common Area by Declarant shall become the property of the Association upon completion of such improvements, except utilities owned and maintained by the County or other governmental entity, or a public or private utility company. The Association shall accept transfer of ownership of any and all Common Property and any and all improvements thereon, including transfer or assignment of any and all associated rights, easements, permits, and obligations.
Section 4. Regulation and Maintenance of Common Area and Common Area Easements. It is the intent of Declarant that the Common Area (whether owned in fee or by easement) be preserved to the perpetual benefit of the Owners within the Subdivision. To that end, the Declarant, by recording any plat or map of any phase or section of the Subdivision, grants 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 for the purpose of enabling the Association to take action permitted by subsections (b) and (c) of this Section 4. The Association shall accept from Declarant any and all assignments of Declarant rights and obligations under any or all of the following: Any part of all of this Declaration or any Supplement; any easements affecting or benefitting the
clarant any and all assignments of Declarant rights and obligations under any or all of the following: Any part of all of this Declaration or any Supplement; any easements affecting or benefitting the Properties or any portion thereof; any encroachment agreement with a Governmental Authority affection or benefitting any part or all of the Properties; any other agreement with or permit, approval, or license issued by a Governmental Authority, a utility provider, or any other Person that affects or benefits any part or all of the Properties; any document required to be executed with respect to the Properties by a Governmental Authority, including assumption of all Declarant or Association responsibilities which are contained in such documents and agreements or which are incident to such assignments as they relate to any Common Area, architectural approvals or functions or services performed or provided by the Association.
(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 Easement. 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 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 any part thereof; or (5) plant vegetation on or otherwise restrict or interfere with the use, maintenance, and preservation of any Common Area.
any Common Area; (4) fill or excavate any Common Area or any part thereof; or (5) plant vegetation on 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 an Owner (other than the Declarant), except for changes authorized or approved in writing by the Declarant or the Association. 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 purpose 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 10 Book 6220 Page 2838 Article V of this Declaration. Provided however, that the Association shall have the obligation to maintain, repair, replace and inspect any cluster unit mail boxes or kiosks in good, safe, clean and sanitary condition and to keep the immediately surrounding area free of debris or other hazards regardless of the location of said cluster unit mail box or kiosk.
(b) Rights and Responsibilities of the Association. The Association shall have the right and obligation to ensure that the Common Area (including Common Area Easements) is preserved to the perpetual benefit of the Owners and, to that end, shall: (i) maintain the Common
hall have the right and obligation to ensure that the Common Area (including Common Area Easements) 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, subject, however, to easements of record and any limitations on such use provided in this Declaration or rules and regulations adopted by the Association as provided herein or in the Bylaws; (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 a Common Area Easement 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 Easement, and any other portion of the Lot to the extent necessary to gain access and maintain improvements and facilities within the Common Area Easement, and 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.
(d) Disposal System. Notwithstanding anything contained herein to the contrary, Declarant shall construct, maintain and operate the Disposal System in strict compliance with the Developer's Operational Agreement and shall continue such maintenance and operation in good
contrary, Declarant shall construct, maintain and operate the Disposal System in strict compliance with the Developer's Operational Agreement and shall continue such maintenance and operation in good repair until such time as the Developer's Operational Agreement allows transfer of ownership to the Association.. Thereafter, the Association shall be charged with proper operation and maintenance of the Disposal System in compliance with the Developer's Operational Agreement.
Section 1.
ARTICLE V COVENANT FOR MAINTENANCE ASSESSMENTS Creation of the Lien and Personal Obligation of Assessments. Each Owner, by execution of this Declaration or by acceptance of a deed or other instrument conveying title to a Lot, whether or not it shall be so expressed therein, is deemed to consent and agree to pay to the Association (or to any Person who may be designated by the Association to collect such monies) all assessments and other charges required by this Declaration, including the following: (1) annual assessments; (2) working capital assessments; (3) special assessments; (4) fines for violations of the provisions of this Declaration or other Governing Documents or assessments levied against Owners for misuse and damage to the Common Areas by the Owners or their family members, tenants, agents, contractors and guests; (5) individual assessments for any expense under the Code or this Declaration which the Association becomes obligated to pay and pays on behalf of an Owner; (6) late payment charges, interest on unpaid assessments, costs of collection, including without 11 Book 6220 Page 2839 limitation, court costs, service charges, and attorney's fees as provided in the Act, and charges for
ges, interest on unpaid assessments, costs of collection, including without 11 Book 6220 Page 2839 limitation, court costs, service charges, and attorney's fees as provided in the Act, and charges for dishonored checks; all as established by the Board from time to time; and (7) all other assessments and charges imposed or allowed to be imposed by this Declaration.
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 Subdivision and, in particular, for: (i) acquisition, improvement, and maintenance of properties, services and facilities related to 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 Common Area owned by the Association in fee; (iv) procurement of insurance; (v) employment of attorneys, accountants and other persons or firms for Association business; (vi) payment of principal and interest on funds borrowed for Association purposes; (vii) payment of any and all Common Expenses and (viii) such other needs as may arise.
Section 3. Amount of Assessments. The Board of Directors shall adopt, as soon as practicable, a budget for the Association for the period that lasts from the creation of the Association until December 31, 2019, and from such budget the Board of Directors will establish the annual
practicable, a budget for the Association for the period that lasts from the creation of the Association until December 31, 2019, and from such budget the Board of Directors will establish the annual assessment for the period of time that lasts from the creation of the Association until December 31, 2019.
Beginning on January 1, 2020, and thereafter, the annual assessments shall be based on a budget approved under the provisions set forth in Section 4 below.
The annual assessment for all Class B Lots and Development Parcels owned by the Class B Member shall be zero; provided, however, that any Lot occupied as a residence shall be assessed at the Class A rate.
The provisions of this subsection shall not apply to, nor shall they be a limitation upon, any change in the annual assessment or the maximum annual assessment incident to a merger or consolidation as provided in §47F-2-121 of the Act.
Section 4. Date of Commencement of Annual Assessments; Amount of Assessments; Ratification of Budgets. Unless a different commencement date is set by the Board of Directors, the annual assessments provided for herein shall commence as to a Lot on the first day of the month after the Lot is subjected to this Declaration.
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. The annual assessment for Class B Lots shall be zero, provided, however, that any Lot which contains a dwelling occupied by any person as a residence shall be assessed at the Class A rate. 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
nce shall be assessed at the Class A rate. 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 12 Book 6220 Page 2840 year. Annual assessments shall be fixed at a uniform rate for all Lots in each Class and may be collected on a yearly, semiannually, quarterly, or monthly basis, as determined by the Board of Directors. Any monies paid at any time by the Declarant for common expenses or otherwise for or on behalf of the Association shall be credited against past or future assessments due from the Declarant, if any.
The Board of Directors shall adopt a proposed budget for the Association at least annually. Within thirty (30) days after the adoption of the proposed budget, the Board of Directors shall send a copy of the proposed budget to the Members 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 ten (10) days nor more than sixty (60) days after the mailing of such notice. Such meeting may, but need not be, combined with the annual meeting of the Members. There shall be no requirement that a quorum be present 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; provided, however, if the budget provides for an annual assessment per Lot not in excess of the Maximum Annual Assessment in effect for that Fiscal Year of the
re membership vote to reject the budget; provided, however, if the budget provides for an annual assessment per Lot not in excess of the Maximum Annual Assessment in effect for that Fiscal Year of the Association, such budget shall be deemed ratified unless Members having at least eighty percent (80%) of the votes of the entire membership vote to reject the budget. If any proposed budget is rejected by the Members, the budget last ratified by the Members shall be continued until such time as the Members ratify a subsequent budget proposed by the Board.
The Association shall, upon demand and for such reasonable charge as the Board may determine, furnish a certificate signed by an officer of the Association, or the management company employed by the Association, setting forth whether the assessments (annual, special, and limited special assessments) for a specific 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 herein, 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 non-recurring expenses, provided that any such assessment shall have been approved by the Declarant (during the Declarant Control Period) and by not less than two-thirds (2/3) of the votes of the Class A Members present and voting (in person or by proxy) at a meeting of the Members, one of the purposes of which is to
ant Control Period) and by not less than two-thirds (2/3) of the votes of the Class A Members present and voting (in person or by proxy) at a meeting of the Members, one of the purposes of which is to vote on the special assessment, and further provided that the special assessment for a Class B Lot shall always be zero; provided further that the Declarant and the Board, whichever is in control, may create a Special Assessment as may necessary for the specific purpose of constructing, reconstructing, repairing or replacing the Disposal System and no such limit shall be imposed for such assessment. Special assessments shall be fixed at a uniform rate for all Lots within each Class and may be collected on a yearly, semiannually, quarterly, or monthly basis, as determined by the Board of Directors.
Written notice of any meeting called for the purpose of voting on a special assessment shall be sent to all Members not less than fifteen (15) days nor more than thirty (30) days prior to the 13 Book 6220 Page 2841 meeting. At such meeting, the presence of Members or of proxies entitled to cast sixty percent (60%) of the votes of each Class of Lots shall constitute a quorum. If the required quorum is not present at any meeting, another meeting may be called subject to the same notice requirement, and if the meeting 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 (½) of the required quorum at the preceding meeting.
Section 6. Limited Special Assessments. The Board of Directors, without vote of the Members, may levy a limited special assessment against any Lot, applicable only to that Lot, for
preceding meeting.
Section 6. Limited Special Assessments. The Board of Directors, without vote of the Members, may levy a limited special assessment against any Lot, applicable only to that Lot, for expenses incurred by the Association with regard to such Lot including, without limitation, expenses incurred under Article VI hereof. Any fine imposed against an Owner pursuant to Section 3 of Article VII of the Bylaws shall also constitute a limited special assessment against such Owner's Lot. Special assessments and limited special assessments shall constitute a lien to the same extent as other annual assessments against the Lot.
Section 7.
Effect of Nonpayment of Assessments; Remedies. No Owner shall be exempt from liability for any assessment provided for herein for reason of non-use of the Common Area or such Owner's Lot, or abandonment or leasing of such Owner's Lot, or unavailability of the use or enjoyment of the Common Area.
All assessments and other charges shall be established and collected as provided in this Declaration. All assessments and other charges remaining unpaid for thirty days (30) days or longer, together with late charges, interest, and the costs of collection thereof, including attorney's fees, shall be charge on the Owner's Lot as provided in §47F-3-116 of the Act and, upon filing of a claim of lien in the office of the clerk of superior court of the county in which the Lot is located in the manner provided in §47F-3-116(g), shall be a continuing lien upon the Lot against which such assessment is made until paid in full. The lien may be foreclosed by the Association in any manner permitted under the Act or by law. When the holder of a first mortgage or first deed of trust of
such assessment is made until paid in full. The lien may be foreclosed by the Association in any manner permitted under the Act or by law. When the holder of a first mortgage or first deed of trust of record or other purchaser of a Lot obtains title to the Lot as a result of a foreclosure of a first mortgage or first deed of trust, such purchaser and its heirs, successors, and assigns shall not be liable for the assessments and other charges against such Lot which became due prior to the acquisition of title to such Lot by such purchaser. All assessments and other charges due hereunder, together with late charges, interest, the costs of collection thereof, including attorney's fees, shall also be the personal obligation or corporate obligation of each Person who was Owner of the Lot at the time when the assessment or other charge first became due and payable and may be collected by appropriate action at law. If more than one Person held an ownership interest in the Lot at the time the assessment or other charge first became due, then each Person shall be both jointly and severally liable. An Owner's personal obligation for payment of such assessments and other charges shall not become the personal obligation of a subsequent Owner unless expressly assumed by the subsequent Owner, although the lien shall continue against the Lot until the amounts due are paid.
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
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 conveyance pursuant to such 14 Book 6220 Page 2842 foreclosure. 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.
Section 9. Exempt Property. All Common Area owned in fee by the Association, 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 Lot devoted to residential 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 a Lot, a sum equal to one-sixth (1/6) of the annual assessment for Class A Lots in effect at the time of such sale 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 its initial operating expenses or to acquire additional equipment or services deemed by the Board of Directors to be necessary or desirable. Amounts paid to the Association pursuant to this Section shall not be considered as an advance payment of any regular assessment.
ervices deemed by the Board of Directors to be necessary or desirable. Amounts paid to the Association pursuant to this Section shall not be considered as an advance payment of any regular assessment.
Section 11. 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 providing the services or materials or pay to the Association the amounts necessary to fund the operating deficit.
Any monies paid at any time or by the Declarant for or on behalf of the Association shall be credited against past or future assessments due from the Declarant.
Section 12.
Reserve Account. The Association shall establish a separate reserve account to fund repairs to and replacements of Common Area including, without limitation, repair or replacement of the Disposal System. Each annual budget shall show the amount to be placed in reserve for each category for which reserves are to be held, including the allocation of funds to maintain the Disposal System.
Section 1.
ARTICLE VI MAINTENANCE OF LOTS AND UNITS Association's Responsibility. In addition to maintenance of the Common Area and the improvements and facilities located thereon, the Association shall be responsible for maintaining the grass, plants, shrubs, trees, landscaping, sidewalks, driveways and parking areas located on each Lot (hereinafter the "Yard Improvements") and installed by the Declarant or the Association, and any Yard Improvements installed by an Owner with the prior written consent of
ing areas located on each Lot (hereinafter the "Yard Improvements") and installed by the Declarant or the Association, and any Yard Improvements installed by an Owner with the prior written consent of the Association (but only to the extent that such consent specifically provides that the Association will maintain such added Yard Improvements), provided, however, that: (i) the Association shall not be responsible for maintaining any fence installed on any Lot or any Yard Improvements inside of such fenced or enclosed privacy area; (ii) the Association's obligation to maintain shall not include the obligation to replace any plant, shrub or tree for any reason; and (iii) the Association shall not 15