Anthem Covenants
STATE OF NORTH CAROLINA
DECLARATION OF COVENANTS, CONDITIONS
AND RESTRICTIONS FOR ANTHEM
COUNTY OF MECKLENBURG
THIS DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS (the “Declaration”) is made August 9 , 1999 by THE MULVANEY GROUP, LTD., a North Carolina corporation (hereinafter referred to as “Declarant”).
STATEMENT OF PURPOSE
Declarant is the owner of real property in Mecklenburg County, North Carolina, which is more particularly described on Exhibit A hereof, Declarant desires to create thereon a residential community of single-family detached and attached residential dwellings to be known as ANTHEM Subdivision.
Declarant desires to insure the attractiveness of the subdivision and to prevent any future impairment thereof; to prevent nuisances; to preserve, protect, and enhance the values and amenities of all properties within the subdivision; to provide for the maintenance and upkeep of the lawns of all Multi-family Lots, as hereinafter defined, and the storm drainage system; and to undertake the other duties set forth herein; and to this end, desires to subject the Property to the covenants, conditions, restrictions, easements, assessments, charges, liens and other obligations hereinafter set forth, each and all of which is and are for the benefit of said property and each owner thereof.
Declarant has deemed it desirable, for the efficient preservation, protection, and enhancement of the values and amenities in said subdivision, to create an organization to which will be delegated and assigned the powers of maintaining and administering said areas and administering and enforcing the covenants and restrictions and collecting and disbursing the assessments and charges hereinafter created.
Declarant has incorporated or will incorporate under North Carolina law ANTHEM HOMEOWNERS’ ASSOCIATION, INC. as a non-profit corporation for the purpose of exercising and performing the aforesaid functions.
Declarant, by this Declaration, does hereby declare that all of the property described on Exhibit A hereof is and shall be held, transferred, sold, conveyed, and occupied subject to the covenants, conditions, restrictions, easements, assessments, 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, successors and assigns, and shall inure to the benefit of each owner thereof.
This declaration is made pursuant to the provisions of the North Carolina Planned Community Act, Chapter 47F of the North Carolina General Statues. In the event of a conflict between the provisions of the
Planned Community Act and the Articles of Incorporation and/or the Bylaws of the Association and this Declaration, the provisions of the Planned Community Act, the Declaration, the Articles of Incorporation and the Bylaws (in that order) shall prevail.
ARTICLE I
DEFINITIONS
Section 1.1. “Association” shall mean and refer to ANTHEM HOMEOWNER’S ASSOCIATION, INC., a North Carolina non-profit corporation, its successors and assigns.
Section 1.2. “Board of Directors” shall mean and refer to the Board of Directors of the Association.
Section 1.3. “Owner” shall mean and refer to the record owner, whether one or more persons or entities of the fee simple title to any Single Family or Multi-Family Lot which is a part of the Property, including contract sellers, but excluding those having such interests merely as security for the performance of an obligation.
Section 1.4 “Property” shall mean and refer to the property described on Exhibit A.
Section 1.5(A). “Single Family Lot” shall mean and refer to any numbered parcel of land upon which is or may be placed one single-family detached dwelling, with delineated boundary lines, appearing on plat or maps of subdivision recorded with Mecklenburg County.
Section 1.5(B). “Multi-Family Lot” shall mean and refer to any numbered parcel of land upon which is or may be placed one single-family attached dwelling, with delineated boundary lines, appearing on plat or maps of subdivision recorded with Mecklenburg County.
In the event any Single Family or Multi-Family Lot is subdivided, increased or decreased in size by resubdivisions, through recordation of new subdivision plats, by deed or otherwise, each lot resulting from such subdivision or resubdivision shall thereafter constitute a Lot for the purpose of this Declaration.
For purposes of the Declaration, the Single Family and Multi-Family Lots may be referred to collectively as “Lots.” The term “Lot” shall mean either a Single Family or a Multi-Family Lot, unless otherwise indicated.
Section 1.6. “Declarant” shall mean and refer to The Mulvaney Group, Ltd. and its successors and assigns.
Section 1.7. “Map” shall mean and refer to any certain subdivisions map(s) which shows the Property and shall be recorded in the Mecklenburg County Registry.
Section 1.8. “Member” shall mean and refer to every person or entity who holds membership in the Association.
Section 1.9. “Unit” shall mean and refer to one individual living space located on Multi-Family Lots, each Unit being attached to other Units in two-, three-, or four-Unit residences. Contiguous Units make up a “Building.”
Section 1.10. “Assessments” are any dues or other monies owed the Association pursuant to the terms of this Declaration. There are three kinds of Assessments:
(a) Annual Assessments and are those levied against each owner equally, in order to pay for normal activities of the Association.
(b) General Special Assessments are those levied against each owner equally, in order to pay for extraordinary activities of the Association.
(c) Specific Special Assessments are those levied against one or more individual owner(s) on account of violations of those owner(s) of the terms of this Declaration, or on account of expresses incurred by the Association as a result of the activity or inactivity of the owner(s).
Section 1.11. “Building” as used herein refers to any collection of contiguous Units, also referred to as a two-, three-, or four-family dwelling.
Section 1.12. “Common Area” shall refer to all portions of the Property which are deeded to the Association for the common enjoyment of all members, and shall include the Amenity Area. It shall also expressly include all mailboxes which serve any Multi-Family Lot. It shall also include driveways serving any Multi- Family Lot or any Unit or Building, or the Amenity Area, whether or not said driveways are actually deeded to the Association. It shall also include all lawns and yards on any Multi-Family Lot. It shall also include any entryway(s) into the Subdivision, and any traffic circles.
Section 1.13. “Amenity Area” shall refer to a swimming pool and surrounding area and improvements related thereto, which Declarant may, but is not required to, construct on the Property or the Common Area.
Section 1.14. “Bylaws” shall refer to the bylaws of the Association.
Section 1.15. “Articles of Incorporation” shall refer to the articles of incorporation of the Association, as filed with the North Carolina Secretary of State.
Section 1.16. “HUD/VA” shall refer to the U.S. Department of Housing and Urban Development, and/or the Veterans Administration, or, should such organizations cease to exist, any governmental authority which succeeds said organizations.
ARTICLE II
PROPERTY SUBJECT TO THIS DECLARATION
AND WITHIN THE JURISDICTION OF THE
ASSOCIATION
Section 2.1. The Property. The real property which is and shall be held, transferred, sold, conveyed, and occupied subject to this Declaration, and within the jurisdiction of the Association is located in Mecklenburg County, North Carolina, and is described on Exhibit A attached hereto.
Section 2.2. Annexation of Additional Property. Declarant shall have the right, so ling as it owns any Lot, to add additional property to the Property which is the subject of this Declaration, provided that such additional property is physically contiguous to the Property. Such additional property shall be added by recordation of a Supplemental Declaration identifying such contiguous property. Provided however that, so long as there is a Class B Member, such annexation shall require approval of HUD/VA.
In the event the Declarant adds additional property to the Property which is the subject of this Declaration, the Declarant shall have the absolute right, all other provisions of this Declaration notwithstanding, to use any portion of the Property for roadway or other access to the property being added. This right shall include, but not be limited to, the right to use a platted lot(s) for vehicular and/or pedestrian access to the additional property.
Section 2.3 Conveyance or Transfer of Common Area. The Common Area may be conveyed and/or mortgaged by the Association, provided that such conveyance and/or mortgage is approved by at least 80% of the Members (excluding the class B Member). Any dedication of the Common Area to any municipal authority shall, so long as there is a Class B Member, require the approval of HUD/VA.
If ingress or egress to any Lot is through or over any part of the Common area, then any conveyance of said Common Area shall be made subject to an express easement in favor of that Owner and that Lot.
ARTICLE III
MEMBERSHIP AND VOTING RIGHTS
Section 3.1. Membership. Every Owner of any 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.
Section 3.2. Classes of Membership. The voting rights of the membership shall be appurtenant to the ownership of the Lots. There shall be two classes of membership with respect to voting rights. Thee shall be three classes of membership with respect to dues.
l: Voting Rights
(a) Class A1 and A2 Membership. Every Owner of a Single Family Lot, other than the Declarant, shall be considered a Class A1 member. Every Owner of a Multi-Family Lot, other than the Declarant, shall be considered a Class A2 Member. Each Class A1 and A2 Member shall be entitled to one vote per Lot owned. When more that one person owns an interest (other than a leasehold or a security interest) in any Lot, all such persons shall be Members and the voting rights appurtenant to said Lot shall be exercised as the, among themselves, determine, but in no event shall more than one (1) vote be cast with respect to any one (1) Class A1 or A2 Lot.
(b) Class B Membership. The Declarant shall be the Class B Member. The Declarant shall be entitled to four (4) votes for each Lot owned by it. The class B Membership shall cease to exist and shall be converted to Class A1 or A2 Memberships (as appropriate) for voting purposes upon the happening of either of the following events, whichever occurs earlier:
(1) the date that 75% of the Lots are conveyed to class A1 or A2 Members; or
(2) five years from the date of this Declaration, or
(3) written notice of consent to such conversion by the Declarant.
ll: Dues Obligations
(a) Level 1 Dues: All Class A1 and Class A2 Members shall be responsible for paying Level 1 Dues. Level 1 Dues shall be the pro-rata share of all Common Area expenses OTHER THAN THE COMMON AREA EXPENSES SOLELY BENEFITTING THE MULTI-FAMILY LOTS. For purposes of determining the pro-rata share, the Level 1 Dues shall be determined by dividing the total of such expenses by the total number of Lots on the Property.
(b) Level 2 Dues. All Class A2 Members (Owners of Multi-family Lots) shall also be responsible for paying Level 2 Dues. Level 2 dues shall be the pro-rata share of the Common Area expenses solely benefiting the Multi-Family Lots and the expenses related to any other service which benefits solely the Multi-Family Lots (i.e.: hazard insurance, Unit maintenance). For purposes of determining the pro-rata share, the Level 2 Dues shall be determined by dividing the total of such expenses by the total number of Multi-Family Lots.
(c) Class B Membership Dues. The Class B Member, or the Declarant when the Class B membership no longer exists, shall be responsible for one-third of the obligation owed by the individual class A1 and A2 Members, as appropriate, for each Lot owned by it. Alternatively, the Class B Member (or the Declarant) shall have the right to pay any shortfall between the actual Association expenses and the actual revenues raised from the Class A1 and A2 Members. The Class B Member (or the Declarant) shall at all times have the right to satisfy its obligations hereunder by providing services in-kind for the Association.
ARTICLE IV
POWERS OF THE ASSOCIATION
Subject to the provisions of the Articles of Incorporation and this Declaration and the Declarant’s rights herein, the Association may:
(1) Adopt and amend bylaws and rules and regulations;
(2) Adopt and amend budgets for revenues, expenditures, and reserves and collect assessments for common expenses from lot owners;
(3) Hire and discharge managing agents and other employees, agents and independent contractors;
(4) Institute, defend, or intervene in litigation or administrative proceeding on matters affecting the planned community;
(5) Make contracts and incur liabilities;
(6) Regulate the use, maintenance, repair, replacement and modification of common elements;
(7) Cause additional improvements to be made as part of the common elements
(8) Acquire, hold encumber and convey in its own name any right, title or interest to real or personal property. Provided, however, that common elements may be conveyed or subjected to a security interest by the Association only if persons entitled to cast at least 80% of the votes in the Association agree in writing to that action;
(9) Grant easements, leases, licenses and concessions through or over the common elements;
(10) Impose and receive any payments, fees or charges for the use, rental or operation of the common elements other than the limited common elements and for services provided to lot owners;
(11) Impose reasonable charges for late payment of assessments and, after notice and an opportunity to be heard, suspend privileges or services provided by the Association (except rights of access to lots) during any period that assessments or other amounts due and owing to the Association remain unpaid for a period of 30 days or longer;
(12) After notice and an opportunity to be heard, impose reasonable fines or suspend privileges or services provided by the Association (except rights of access to lots) for reasonable periods for violations of the declaration, bylaws and rules and regulations of the Association;
(13) Impose reasonable charges in connection with the preparation and recordation of documents, including, without limitation, amendments to the declaration or statements of unpaid assessments;
(14) Provide for the indemnification of and maintain liability insurance for its officers, executive board, directors, employees and agents;
(15) Assign its right to future income, including the right to receive common expense assessments;
(16) Exercise all other powers that may be exercised in this State by legal entities of the same type as the Association; and
(17) Exercise any other powers necessary and proper for the governance and operation of the Association.
ARTICLE V
PROPERTY RIGHTS
Section 5.1. Owner’s Easement of Enjoyment. Every Owner shall have a general right and easement of enjoyment of his own Lot and the Common Area which is deeded to the Association, subject to the provisions of this Declaration. Provided, however, that only owners of Multi-Family Lot(s) shall be entitled to a general right and easement of enjoyment of the driveway serving that particular Multi-Family Lot. Provided, furthermore, there shall be no easement reserved to any Owner regarding the lawns and yards of any Multi-Family Lot, except as set forth in Section 5.2(a) below.
Section 5.2. Other Easements Pertaining to Multi-Family Lots.
(a) Reservations of Easements to Other Owners. All Owners of a Unit in a particular Building shall have a permanent easement and right to enter upon the property of all other Owners of Units within that same Building for purposes of pedestrian traffic and moving materials from the rear of the Building to the front and vice-versa. No Owner shall build any walls, fence or other improvements or take any action whatsoever which in any way restricts the ability of the other Owners within the same Building to exercise the rights reserved herein.
(b) Reservation of Easements to Declarant, the Association and its Assignees or Maintenance Contractors. The Declarant, the Association, their successors and assigns and any third party maintenance contractor hired by them shall have a permanent easement and right at any time to enter onto the property and/or into a Unit of any Owner, as is reasonably necessary for purposes of undertaking any construction, maintenance or repair which is the responsibility of the Association hereunder, including but not limited to, construction, maintenance and repair of any structure, roofs, common walls, exterior improvements, driveways, planting and maintaining landscape improvements and installing and maintaining drainage improvements. This right includes, but is not limited to the right to plant, water and cut grass, and to grade landscape to promote proper drainage.
(c) Reservation of Easements for Utility Installation, Service and Maintenance. The Declarant, the Association their successors and assigns and any third party contractor hired by them, and any public utility provider, shall have a permanent easement and right to enter onto the property and/or into a Unit of any Owner, as is reasonably necessary for purposes of installing, servicing and maintaining all utilities provided to the Units including, but not limited to cable television, gas, electric power, telephone, HVAC, and water and sewer services.
Section 5.3. Other Easements Pertaining to Single Family Lots.
Declarant hereby reserves for itself, its successors and assigns, a permanent easement across all Single Family Lots, five feet in width running from the side walls of any single family residence to the side lines of any such Single Family Lot. The use of said easement shall be restricted to the construction and installation of decorative fencing. Said fencing shall not be removed by any Owner without the prior written approval of the Declarant or, if Declarant no longer owns any Lots, the Association.
Section 5.4. Other Easements Pertaining to All Lots.
(a) Reservation of Five-Foot Side Line and Ten-Foot Rear Line Easements. The Declarant hereby reserves for itself, its successors and assigns a permanent five-foot right of way along the side lines and a permanent ten-foot right of way along the rear lines of each Lot ( other than portions of Lots on which common walls have been built ) for the purposes of the installation and maintenance of poles, lines, conduits, pipes and other equipment necessary or useful for furnishing electrical power, gas, water, sewer, storm drainage, telephone service and other utilities and all walls columns, lamps and entry ways appurtenant to the Common Area.
(b) [Reserved]
(c) Restrictions on Improvements or Interference with Easements. No improvements shall be built in such a way, and no other action shall be taken by any Owner, which in any way restricts or limits the easement rights granted and reserved herein.
(d) Reservation of Easements for Encroachments. Declarant, for itself and for its successors and assigns, reserves a permanent right and easement over all of the Lots for encroachment of roofs, trim and molding, between adjoining Lots. This right and easement shall be for the continuing existence of any such encroachments; further, there shall be a perpetual right and easement of Owners and their employees, agents and representatives, to go upon adjoining property for the purpose of repair, maintenance and reconstruction of any structure located on the Lot of such Owners.
(e) Access through Lots. Each Owner shall afford to the association, and when necessary to another Owner, access through the Owner’s Lot reasonably necessary for any maintenance, repair or replacement activity required on the Common Area.
Section 5.5. No Entry Into Residences. Nothing in this section or in this Declaration shall be interpreted to grant or reserve to any Owner, other than the Declarant or the Association, the right to enter into the residence of any other Owner under any circumstances whatsoever.
ARTICLE VI
COVENANT FOR MAINTENANCE ASSESSMENTS
Section 6.1. Creation of the Lien and Personal Obligation of Assessments.
(a) The Declarant, for each Lot within the Property, hereby covenants and each Owner of any Lot by acceptance of a deed therefore, 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 (2) General Special Assessments for capital improvements and (3) Specific Special Assessments, as determined by the Association, such assessments to be established and collected as hereinafter provided. Any such assessment or charge, together with interest, costs, fines and reasonable attorney’s fees shall be a charge on the land and shall be a continuing lien upon the property against which each such assessment or charge is made. Each such assessment, together with interest, costs, fines 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 or charge fell due.
(b) Any assessment levied against a Lot remaining unpaid for a period of 30 days or longer shall constitute a continuing lien on that Lot when a claim of lien is filed of record in the office of the clerk of superior court of the county in which the Lot is located. The Association may foreclose the claim of lien in like manner as a mortgage on real estate under power of sale under Article 2A of Chapter 45 of the General Statutes of North Carolina.
Section 6.2. Purpose of Assessments.
(a) The Assessments levied by the Association shall be used to promote the recreation, health, safety and welfare of the residents of the Property and in particular for the maintenance and improvement of the Common Area.
(b) The Assessments levied by the Association shall also be used to provide insurance, and may be used to provide termite protection for all Multi-Family Lots.
(c) All monies collected by the Association shall be treated as the separate property of the Association, and such monies may be applied by the Association to the payment of any expense of operating and managing the Property, or to the proper undertaking of all acts and duties imposed upon it by virtue of this Declaration, the Articles of Incorporation and the Bylaws of the Association. As monies for any assessment are paid to the Association by any Owner, the same may be commingled with monies paid to the Association by the other Owners. Although all funds and common surplus, including other assets of the Association, and any increments thereto or profits derived there from, shall be held for the benefit of the Members of the Association, no Member of the Association shall have the right to assign, hypothecate, pledge or in any manner transfer his membership interest therein, except as an appurtenance to his Lot, by whatever means, and the Association shall not be required to account to such Owner for any share of the fund or assets of the Association, or which may have been paid to the Association by such Owner, as all monies which any Owner has paid to the Association shall be and constitute an asset of the Association which may be used in the operation and management of the Property.
Section 6.3. Maximum Annual Assessment.
(a) Until January 1 of the year immediately following the year in which conveyance of the first Lot to an Owner is made, the Annual Assessment for Level 1 Dues shall be Two Hundred Twenty Eight Dollars ($228.00) per year;
(b) Until January 1 of the year immediately following the year in which conveyance of the first Lot to an Owner is made, the Annual Assessment for Level 2 Dues shall be Six Hundred and Sixty-Six Dollars ($660.00). (Accordingly, the initial Annual Assessment on all Multi-Family Lots shall be Eight Hundred and Eighty-Eight Dollars ($888.00) per Lot, representing both Level 1 and Level 2 Dues);
(c) Prior to the termination of the Class B period, as set forth in Article lll, the Declarant shall pay dues in accordance with Section ll(c) of that Article; subsequent to the termination of the Class B period, the Declarant shall be responsible to pay one-third the applicable Assessment for each Lot it owns;
(d) The Annual Assessments shall be established by the Board of Directors on an annual basis. The Annual Assessments may be increased by the Board of Directors, without approval by the membership, by a percentage not to exceed the sum of ten percent (10%) per year. No approval shall be required for any increase of the Level 2 Dues which is directly attributable to insurance premiums on Units and/or Buildings;
(e) The Board shall have the right to reduce the Annual Assessments at any time.
Section 6.4. Capital Contribution. Every Owner other than the Declarant shall likewise be responsible for an initial capital contribution in the amount of $75.00. Such capital contribution shall be due upon transfer of the title to any portion of the Property to the Owner. All initial capital contributions shall be held as a working capital fund, net any bank fees or charges.
Section 6.5. Notice And Quorum For Any Action Authorized Under Sections 6.3. Written notice of any meeting called for the purpose of taking any action authorized under Section 6.3 hereof shall be sent to all Members not less than ten (10) days nor more than sixty (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 at the subsequent meeting shall be on-half (1/2) of the required quorum at the preceding meeting. No such subsequent meeting shall be held more than sixty (60) days following the preceding meeting.
Section 6.6. Rate Of Annual Assessment. Both Annual and General Special Assessments must be fixed at a uniform rate for all Lots within each class and shall be collected on a not more often than monthly basis.
Section 6.7. Date Of Commencement Of Annual Assessments: Due Date. The Annual Assessments provided for herein shall be due in full on January 1 of each calendar year (other than the first year in which such Assessments are levied, in which case, such are due immediately upon assessment), and shall be payable as determined by the Association in its absolute discretion, on a monthly or quarterly basis on the first business day of each calendar month or quarter. The first such annual assessment shall be adjusted according to the number of days remaining in the calendar year after conveyance of the first Lot to an Owner.
General and Specific Special Assessments shall be due immediately when levied by the Association, or at such other time determined by the Association.
At least thirty (30) days in advance of each annual assessment period, the Board of Directors shall fix the amount of the annual assessment against each Lot for the next year and at least thirty (30) days before January 1 shall send written notice of such fixed assessment to every Owner subject thereto. The Association shall, upon demand, and for a fee to be determined by the Association, furnish a certificate signed by an officer of the Association setting forth whether the assessment on a specific Lot has been paid.
Section 6.8. 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 18% per annum. In addition to such interest charge, the delinquent Owner shall also pay such late charges or fines as may have been theretofore established by the Board of Directors, as well as any attorney’s fees incurred by the Association related in any way to the collection of said delinquent payment. The Association may bring an action at law against the Owner personally obligated to pay the same or foreclose the lien created herein against the property in the same manner as prescribed by the laws of the State of North Carolina for the foreclosure of deed of trust, and interest, late payment fees, costs and reasonable attorney’s fees for representation of the Association in 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 abandonment of his Lot; nor shall damage to or destruction or improvement on any Lot by fire or other casualty result in abatement or diminution of the assessments provided for herein.
Provided, however, that an Owner’s failure to pay any assessment shall not constitute a default under a mortgage given by that Owner, unless expressly agreed to by the Owner in writing.
Section 6.9. Exempt Properties. The assessments, charges and liens created under this Article Vl shall not apply to any Lot the title to which is vested either in any first mortgagee subsequent to foreclosure or in the Secretary of Housing and Urban Development or the Administrator of Veterans Affairs or any other state or federal governmental agency which acquires title by reason of such agency’s guarantee or insurance of a foreclosed mortgage loan. All land which shall be dedicated to and accepted by a local public authority, and all land granted to or used by a utility company, and property owned by a nonprofit organization exempt from taxation under the laws of the State of North Carolina shall be exempt from the assessments and charges created herein.
Section 6.10. Subordination to the Lien of First Mortgages. The lien of the assessments provided for herein shall be subordinate to the lien of any first priority deed of trust or first mortgage. The sale or transfer of any Lot shall not affect the assessment lien; provided, however, the sale or transfer of any Lot which is subject to any first deed of trust or first mortgage, pursuant to a foreclosure thereof or under a power of sale, or any proceeding in lieu of foreclosure thereof, shall extinguish the lien of such assessment as to payments which became due prior to such sale or transfer.
ARTICLE VII
ARCHITECTURAL CONTROL
No improvement of any sort shall be commenced, erected, or maintained upon the Property or any Single Family Lot or Multi-Family Lot, Unit or Building, ( including but not limited to exterior alterations such as fences, sheds, room additions, decks and/or porches ) without the express approval of the Declarant, so long as the Declarant owns any Lot, and thereafter, by the Board of directors of the Association. Additionally, no cosmetic change shall be made to any Building or Unit (including but not limited to, color or painting of the exterior and the type of exterior finish) without the express approval of the Declarant (or the Board, as appropriate). In the event an Owner desires to erect an improvement on any Lot, or alter the exterior of any Unit or Building, the Owner shall submit to the Declarant (or the Board, as appropriate), three copies of the plans and specifications showing the nature, kind, shape, height, materials, and location of the improvements. The Declarant (or the Board) shall have absolute discretion as to the approval or denial of any improvements, provided that the Declarant (or the Board) shall base its approval or denial upon reasonable consideration as to harmony of external design and location in relation to surrounding structures and topography. Absent such approval, the proposed improvement may not be commenced.
In the event an Owner of any Lot in the Properties shall make unauthorized changes to any Unit, Lot or Building and the improvements situated thereon in a manner unsatisfactory to the Declarant (or the Board) the Declarant (or the Board) shall have the right, through its agents and employees, to enter upon said parcel and to repair, maintain and restore the Lot and the exterior of the Buildings and any other improvements erected thereon. The cost of such exterior maintenance and any other costs or attorney’s fees incurred in the enforcement of the rights under these provisions shall be considered a Specific Special Assessment against that Owner(s) and his/her Lot(s).
ARTICLE VIII
MAINTENANCE
Section 8.1. Maintenance by the Association.
1. Maintenance Obligations Benefiting the Multi-Family Lots Exclusively
(a) Units. The Association shall provide ordinary care, maintenance and repair services related to the maintenance, upkeep and repair of all roofs, common walls, and Unit exteriors, including trim and siding, as well as all exterior front doors. The Association shall provide all necessary maintenance and upkeep as it determines in its discretion is necessary to maintain the aesthetic quality of the exterior of each Building. Provided, however, that the Association shall provide for all exterior wood, including trim and siding and all exterior front doors to be painted at least every five (5) years.
(b) Lawns/Landscape. The Association shall provide ordinary care and maintenance on and for each Multi-Family Lot as determined by the Association. Such lawn care and maintenance on Lots may include, without limitation, the maintenance or replacement of any grass, trees, bushes and shrubs planted by the Association (or by the Owner with the approval of the Association). The Association shall not be responsible for the maintenance of any landscape improvements unless said improvements were installed by the Association, or for which the Association has expressly assumed maintenance obligations.
(c) Driveways and Walkways. The Association shall provide ordinary care and maintenance on and for every driveway and walkway serving any Multi-Family Lot.
ll. Maintenance Obligations Benefiting All Lots
(a) Common Area. The Association shall provide ordinary care and maintenance for the Amenity Area, and all other portions of the Common Area which are not to the exclusive benefit of the Multi-Family Lots. Specifically, the Association shall care for and maintain the Amenity Area, all entryways to the Property and improvements thereto, all traffic circles centers, and such care and maintenance shall be deemed to benefit all Lots.
(b) Street Lighting. The Association shall provide ordinary care and maintenance for certain street light fixtures installed at the Property. The Association shall also be responsible for all electricity expense related to the operation of those street lights.
lll. Maintenance Easements
In order to enable the Association to accomplish its maintenance obligations as set forth in this Article, permanent rights and easements over all Lots, and into all Units, have been reserved to the Association pursuant to Article V.
Section 8.2. Maintenance by Owners:
(a) Multi-Family Lots: Each Owner of a Multi-Family Lot shall be responsible for the maintenance, repair or replacement of the following items located on his Lot: glass surfaces; window and door screens; patios; wooden decks or any part thereof including railings, supports and steps; awnings; fences; all landscape improvements the maintenance of which has not been expressly accepted by the Association; and exterior alterations approved by the Declarant pursuant to the provisions of Article Vll hereof; provided, however, the external appearance of such maintenance, repairs or replacement shall be subject to the regulation and control of the Declarant or the Association as provided in this Declaration.
(b) Single-Family Lots: Each Owner of a Single-Family Lot shall be responsible for the maintenance, repair, and replacement of all improvements to his Lot. Each Owner shall maintain his Lot in an orderly fashion, keeping all vegetation of any kind neatly kept and trimmed. Provided, however, the external appearance of such maintenance, repairs or replacement shall be subject to the regulation and control of the Declarant or the Association as provided in this Declaration.
(c) Should an Owner fail to discharge his maintenance, repair or replacement responsibilities in a reasonable and prudent manner to standards harmonious with that of other Lots in the subdivision (as determined by the Declarant in its discretion or, after the Declarant owns no portion of the Property, by the Association), then the Declarant (or Association, if appropriate) in its discretion may demand that the Owner promptly comply with the same by mailing a notice thereof to the Owner at his address, specified in his contract to purchase such Lot and by posting such notice on the Lot. If the Owner has not complied therewith within five (5) days thereafter, the Declarant (or Association) shall have the right to cause such maintenance, repair or replacement to be performed and to charge the cost thereof as a part of and in addition to the regular assessment attributable to the Lot as provided for in this Declaration, notwithstanding any provision to the contrary contained herein. Should an Owner fail to pay any charge belled in accordance with this subparagraph (c) within fifteen (15) days of such billing, then the Declarant (or Association) shall have the right levy fines and to claim a lien against the Lot and to foreclose such lien, all as provided for in Article Vl of the Declaration. No such entry as provided herein shall be deemed a trespass.
Section 8.3. Association’s Obligation to Rebuild Units on Multi-Family Lots. After the completion of construction of a Unit and the conveyance of that Unit by Declarant to an ultimate purchaser, if all or any portion of a Unit is damaged or destroyed by fire or other casualty, it shall be the duty of the Association, with all due diligence, to repair or reconstruct such Unit using the same design plans as used in the original construction of the Unit. If such plans are not reasonably available, the Association shall rebuild the Unit in substantially the same style, configuration, and interior and exterior appearance as it existed immediately prior to the casualty. Reconstruction shall be undertaken within thirty (30) days after the receipt of hazard insurance proceeds, and shall be completed within one-hundred eighty (180) days after the receipt of hazard insurance proceeds, unless prevented by causes beyond the control of the Association.
Section 8.4. General Maintenance Provisions.
(a) In the event that the need for maintenance, repair, or replacement is caused through the willful or negligent act of an Owner, his family, guests, or invitees, the cost of such maintenance, repair or replacement shall be added to and become a part of the assessment to which such Lot is subject, notwithstanding any provisions to the contrary contained herein.
(b) The Association shall have the power to enforce the obligations contained in this Article Vlll through the levy of General and/or Specific Special Assessments.
ARTICLE lX
USE RESTRICTIONS: SINGLE FAMILY LOTS
Section 9.1. Residential Use. All Single Family Lots shall be used for single family residential purposes only. No structure erected, altered, placed or permitted to remain on any Single Family Lot shall exceed two and one-half stories in height, as measured from the front elevation. A private garage for each Single Family Lot for not more than three cars and other accessory structures customarily incidental to the use of the Lot may be erected.
Section 9.2. Setbacks. No building shall be located nearer to the front property line or any side street line than the building setback line as shown on the recorded maps of Single Family Lots. No building shall be located nearer any side lot line than the applicable zoning ordinance shall allow. Deviations from building line requirements not in excess of ten percent (10%) thereof shall not be construed as a violation of the building line requirements as long as such deviation does not violate any local ordinance or zoning.
Section 9.3. Animals and Pets. No animals of any kind shall be kept on any Single Family Lot except generally accepted household pets, which may be kept thereon for the sole pleasure and use of the occupants but not for commercial use and no more than three pets over the age of six months shall be permitted at any time. Birds shall be confined in cages. No swine or goat or cattle of any kind shall be permitted. No dogs shall be allowed to remain outside on any Lot unattended and unleashed for any extended period of time (it being the intent of this restriction to prevent any dog(s) from remaining outside for the duration of any word day or overnight). In no instance shall household pets become a nuisance to other Owners, or infringe upon the property rights of other Owners.
Section 9.4. Signs. No signs of any type or kind shall be erected, placed or permitted to remain upon or above any Single Family Lot or Common Area with the exception of a single sign “For Rent” or “For Sale,” which sign shall not exceed two feet by three feet in dimension and shall refer only to the premises on which displayed, there being only one sign to a Single Family Lot. Notwithstanding the above, Declarant may erect and place signs of any size or shape on any unsold Single Family Lot or the Common Area. Declarant shall also have the right of ingress, egress, and regress over the aforesaid Single Family Lots and Common Area in order to maintain and replace any such signs until all of the Single Family Lots have been conveyed by Declarant.
Section 9.5. Nuisances. No activity may be carried on which shall or may be offensive, illegal, or an annoyance or nuisance, as determined by Declarant. No Single Family Lot or right-of-way shall be used for rubbish disposal, or for storage if such storage may cause such Lot or right-of-way to appear unclean or unsightly; nor shall anything be kept upon any Single Family Lot or right-of-way that will emit a foul odor, or will cause noise that might disturb the peace. However, the foregoing shall not be construed to prohibit temporary deposits of trash, rubbish and other such debris for pick up by trash removal service units, but such deposits shall only be permitted on the specific day of pick up. In the event any Owner fails or refuses to keep his Single Family Lot free from unsightly objects, weeds, or underbrush or to maintain the main the structures on each Single Family Lot in a manner satisfactory to the Board of Directors, the Board of Directors may, five days after delivering notice to the Owner requesting the Owner comply with the requirements of this paragraph, enter and remove all such unsightly object or vegetation at Owner’s expense and Owner agree to pay such costs incurred by the Association in the enforcement of this paragraph, such charge being deemed a Specific Special Assessment. No such entry as provided herein shall be deemed a trespass. The foregoing provisions shall not apply to Declarant or to a Builder while constructing residences upon any Single Family Lots.
Section 9.6. Clotheslines, Garage Cans, Lawn Maintenance , General Upkeep of Lots, etc. All clotheslines, garbage cans, lawn mowers, stored materials, wrecked, unlicensed, or inoperable vehicles, and similar equipment shall be kept in an enclosed structure or adequately screened by planting or fencing, as determined by the Board of Directors. Incinerators for garbage, trash, or other refuse shall not be permitted on any Single Family Lot. All garbage cans and other sanitary containers must be kept in the garage or other storage area, and shall not be permitted to be left on the street for pickup for more than 12 hours. Temporary window treatments (such as towels, bed sheets, etc.) shall not be permitted except for the first 30 days after an Owner takes possession of his/her/their property. No trash, rubbish, garbage, or other waste material shall be kept or permitted upon any Single Family Lot or the Common Area, except in garbage cans or other sanitary containers. No weeds, vegetation, rubbish, debris, garbage, or other waste materials shall be permitted to accumulate on any Lot or any other portion of the Property which would render it unsanitary, unsightly, or offensive. Each Owner shall keep his grass, hedges, shrubs, vines and mass planting of any kind trimmed or cut so as to appear neat and attractive, and shall promptly remove any dead trees, vines, shrubs, or plants on his property.
Section 9.7. Antennas, Satellite Dishes. No freestanding radio or television transmission or reception towers, antennas, dishes or discs shall be erected on a Single Family Lot. Provided, however, that radio and television antennas not exceeding three (3) feet in height above the roofline of the residence and dishes or disks not exceeding three (3) feet in diameter and not visible from the street in front of the residence shall be permitted so long as they are attached to the structure of the residence only and not visible from the street in front of the residence.
Section 9.8. Walls, Fences and Hedges. Walls and fences are permitted as long as both sides of such structures are constructed of identical materials and identical designs, and such walls and fences are of a uniform height across the entire Single Family Lot. No chain link, cyclone, or similar sort of fencing shall be permitted, provided however that split-rail fencing with reasonable pet fencing attached shall be permitted. For masonry walls, no exposed concrete block will be permitted. Hedges shall be maintained in a neat condition on both sides. All walls, fences, and hedges shall be located only in the rear yard of each Single Family Lot, a “rear yard” being defined as the portion of each lot from the side walls of any house, out to the side lot lines, then back to the rear property line. Provided, however, that on corner lots, no walls, fences or hedges shall be erected in the side yard, the side yard setback, or along any road. Additionally, all walls, fences and hedges must connect to the decorative fencing erected by the Declarant, except as may be necessary to meet any city ordinance requirements.
Section 9.9. Pools. Inground pools shall be permitted upon Single Family Lots but such pools must be located directly behind the residence of each Single Family Lot and fully enclosed by a fence which conforms to local, city and/or county ordinances, and shall not infringe on any easement or city setback zoning requirement.
Section 9.10. Driveways and Parking Areas. Only driveways and parking areas constructed of concrete or brick shall be permitted.
Section 9.11. Boats, Commercial Vehicles, Etc. No boats, motor homes trailers, campers, mobile homes, commercial trucks of any size, recreational vehicles in excess of twelve (12) feet in length or vans used for commercial purposes (as distinguished from vans used solely as passenger vehicles), wrecked vehicles, inoperable vehicles or any vehicle not regularly operated shall be placed upon a Single Family Lot for storage purposes, other than in a garage.
Section 9.12 Outbuildings. There shall be no structure of a temporary nature on any single Family Lot; all structures erected must have a permanent foundation. No trailer, shed, tent, garage or any other similar structure shall be used as a residence. Provided, however, this paragraph shall not be construed to prevent Declarant from using sheds or other temporary structures during construction. Provided, further, this paragraph shall not be construed to prevent Owners from constructing a utility shed (such shed not to exceed 12 feet by 16 feet in area) if constructed of materials similar to those used in the residence upon such Single Family Lot, if located behind the rear wall of the residence, if constructed in conformity to existing structures within the immediate area, and if not located within any easements.
Section 9.13. Basketball Goals and Mailboxes. Basketball goals shall be permitted on a Single Family Lot if placed a minimum of twelve (12) feet behind the concrete curb into such Single Family Lot and placed outside of the public right-of-way. All goals and surrounding areas are to be maintained in a neat and orderly condition so as not to create a nuisance, as described in Section 9.5. No stone or masonry mailbox structures are permitted. All mailboxes are to be constructed of break-away materials as approved by the North Carolina Department of Transportation, and to the extent possible shall be identical to those originally installed by the Declarant.
Section 9.14. Minimum Square Footage. Single family dwellings shall contain not less than a minimum of Nine hundred and fifty (950) square feet of heated floor area, exclusive of garage, carport, unheated storage areas and non-living space for dwellings.
Section 9.15. Side Setbacks. (See Section 9.2)
Section 9.16. Waiver. Declarant may, but need not, waive in writing any violation of the designated and approved building location lines on either side lot line, horizontal measurement only, provided that such violation does not exceed 10% of the applicable requirements and provided such violation does not violate any local ordinance or zoning.
Section 9.17. Fire. In the event any home or structure is destroyed or partially destroyed, said damage must be repaired and the improvement reconstructed within twelve months.
Section 9.19. General. Each Single Family Lot now or hereafter subjected to this Declaration shall be subject to all Easements. No structure of any type shall be erected upon a Lot which will interfere with rights and use of any Easement.
Section 9.20. Utility and Drainage. An easement on each Single Family Lot is hereby reserved by Declarant for itself and its successors and assigns along, over, under and upon a strip of land ten (10) feet in width along the rear lot lines of all Lots shown on recorded plats, and easements five (5) feet in width along the front and side lot lines of all Single Family Lots shown on recorded plats, in addition to any other Easements. The purpose of these easements shall be to proved, maintain, and operate drainage facilities and utility service lines to, over or for each of the Single Family Lots. Within these easements, no structure, planting or other material shall be placed which may interfere with the installation or maintenance of utilities, or which may change the direction or flow of drainage channels in the easements except for party walls located on a portion of the side line or lines of a Single Family Lot. The easement area and all improvements in it shall be maintained by the Owner, except for those improvements for which a public authority or utility company is responsible. With ten (10) days prior written notice to Owner, Declarant may exercise the right to remove obstruction in such easements upon Owner’s failure to do so, at Owner’s expense, and Owner agrees to pay costs incurred by Declarant in doing so. For the purpose of this covenant, Declarant reserves the right to modify or extinguish the easements herein along any Lot lines in its sole discretion. For the duration of these restrictions, no such utilities shall be permitted to occupy or otherwise encroach upon any of the easement areas reserved without first obtaining the prior written consent of Declarant; provided, however, local service from utilities within easement areas to residences constructed upon any such Lots may be established without first obtaining separate consents therefore from Declarant.
Section 9.21. Emergency. There is hereby reserved a general easement to all firemen, ambulance personnel, police and security guards and all similar persons to enter upon the Property or any portion thereof, in the performance of the respective duties.
Section 9.22. Declarant’s Consent to Sales Materials. Until all of the Single Family Lots have been conveyed by Declarant, all sales and advertising materials, and all forms of deeds contracts for sale, and other closing documents for the sale of Single Family Lots by any Builder shall be subject to the prior approval of Declarant, which approval shall not be unreasonably withheld. If Declarant fails to notify a Builder of approval or disapproval within thirty days, Declarant shall be deemed to have approved the foregoing. Upon disapproval, Declarant shall provide Builder a list of required changes, and the above procedure shall be repeated until approval is obtained.
Section 9.23. Unintentional Violation. In the event of an unintentional violation of any of the foregoing restrictions with respect to any Single Family Lot, Declarant reserves the right (with the mutual written consent of the then Owner of such Lot) to change, amend, or release any portion of the foregoing restrictions as the same may apply to that particular Single Family Lot. Such release shall not be deemed to prejudice the enforceability of the same restriction against other Single Family Lots in the future.
Section 9.24. Declarant’s Right to Repurchase. If at any time Declarant sells any Single-Family Lot to a person or persons, firm or corporation, and such person or persons, firm or corporation shall intend to sell such Single-Family Lot before any residence is constructed on said Single-Family Lot. Declarant reserves and shall have the right and option, but not the obligation to purchase the Single Family Lot at a price not exceed the original selling price with the option expiring thirty (30) days after the Owner notifies the Declarant in writing of his, her or their intentions, said notice to be certified mail with return receipt, and said notice shall contain the name and address of the intended purchaser and the price and all other terms of the intended sale.
Section 9.25. New Construction Only. Construction of new buildings only shall be permitted, it being the intent of this covenant to prohibit the moving of any existing building onto a Single Family Lot and remodeling or converting same into a dwelling unit in this subdivision.
ARTICLE X
USE RESTRICTIONS: MULTI-FAMILY LOTS
Section 10.1. Residential Use. All Multi-Family Lots shall be used for residential purposes only. No structures shall be placed upon any of said Lots except one portion of an attached three- or four-family dwelling. As used in these restrictive covenants, the word “family” shall be deemed to include to the owners
Section 10.2. Reserved.
Section 10.3. Animals and Pets. No animals of any kind shall be kept on any Multi-Family Lot except generally accepted household pets, which may be kept thereon for the sole pleasure and use of the occupants but not for commercial use and no more than three pets over the age of six months shall be permitted at any time. Birds shall be confined in cages. No swine or goat or cattle of any kind shall be permitted. No dogs shall be allowed to remain outside on any Lot unattended and unleashed for any extended period of time (it being the intent of this restriction to prevent any dog(s) from remaining outside for the duration of any word day or overnight). In no instance shall household pets become a nuisance to other Owners, or infringe upon the property rights of other Owners.
Section 10.4. Signs. No sign of any kind shall be displayed to the public view on any Multi-Family Lot except; one sign, (which must be placed in a window inside the Unit) of not more than five (5) square feet advertising the property for sale or rent; signs used by a builder to advertise the property during the construction and sale period; or, larger signs placed by the Declarant or its assignee for use in identifying the subdivision. The foregoing notwithstanding, Declarant shall have the right to place signs on the Common Area, the Amenity Area, and on any unsold Multi-Family Lot until all of the Units have been conveyed by Declarant.
Section 10.5. Nuisances. No activity may be carried on which shall or may be offensive, illegal, or an annoyance or nuisance, as determined by Declarant. No Multi-Family Lot or right-of-way shall be used for rubbish disposal, or for storage if such storage may cause such Lot or right-of-way to appear unclean or unsightly; nor shall anything be kept upon any Multi-Family Lot or right-of-way that will emit a foul odor, or will cause noise that might disturb the peace. However, the foregoing shall not be construed to prohibit temporary deposits of trash, rubbish and other such debris for pick up by trash removal service units, but such deposits shall only be permitted upon the specific day of pick up. In the event any Owner fails or refuses to keep his Multi-Family Lot free from unsightly objects, weeds, or underbrush or to maintain the main the structures on each Multi-Family Lot in a manner satisfactory to the Board of Directors, the Board of Directors may, five days after delivering notice to the Owner requesting the Owner comply with the requirements of this paragraph, enter and remove all such unsightly objects or vegetation at Owner’s expense and Owner agree to pay such costs incurred by the Association in the enforcement of this paragraph, such charge being deemed a Specific Special Assessment. No such entry as provided herein shall be deemed a trespass. The foregoing provisions shall not apply to Declarant or to a Builder while constructing residences upon any Multi-Family Lots.
Section 10.6. Clotheslines, Garage Cans, Lawn Maintenance , General Upkeep of Lots, etc. All clotheslines, garbage cans, lawn mowers, stored materials, and similar equipment shall be kept in an enclosed structure or adequately screened by planting or fencing, as determined by the Board of Directors. Incinerators for garbage, trash, or other refuse shall not be permitted on any Multi-Family Lot. All garbage cans and other sanitary containers must be kept in the storage area provided for with the Unit, and shall not be permitted to be left on the street for pickup for more than 12 hours. Temporary window treatments (such as towels, bed sheets, etc.) shall not be permitted except for the first 30 days after an Owner takes possession of his/her/their property. No trash, rubbish, garbage, or other waste material shall be kept or permitted upon any Multi-Family Lot or the Common Area, except in garbage cans or other sanitary containers. No weeds, vegetation, rubbish, debris, garbage, or other waste materials shall be permitted to accumulate on any Lot or any other portion of the Property which would render it unsanitary, unsightly, or offensive. Each Owner shall keep all landscaping of any kind (with the exception of the landscaping required to be maintained by the Association under Section 8.1) trimmed or cut so as to appear neat and attractive, and shall promptly remove any dead trees, vines, shrubs, or plants on his property (if not required to be removed by the Association under Section 8.1.
Section 10.7. Antennas, Satellite Dishes. No freestanding radio or television transmission or reception towers, antennas, dishes or discs shall be erected on a Multi-Family Lot. Provided, however, that radio and television antennas not exceeding three (3) feet in height above the roofline of the residence and dishes or disks not exceeding three (3) feet in diameter and not visible from the street in front of the residence shall be permitted so long as they are attached to the structure of the residence only and not visible from the street in front of the residence.
Section 10.8. Fences, Walls, Hedges. No fence, wall, patio enclosure, hedge, garden, or mass planting shall be erected, maintained or permitted on any Multi-Family Lot other than those expressly approved by the Association (or the Declarant prior to the conveyance by Declarant of the last Unit or Multi-Family Lot).
Section 10.9. Pools. No swimming pools shall be built, placed or allowed to remain on any Multi-Family Lot.
Section 10.10. Reserved.
Section 10.11. Boats, Commercial Vehicles, Etc. No boats, motor homes trailers, campers, mobile homes, commercial trucks of any size, recreational vehicles in excess of twelve (12) feet in length or vans used for commercial purposes (as distinguished from vans used solely as passenger vehicles), wrecked vehicles, inoperable vehicles or any vehicle not regularly operated shall be parked within the right of way of any public or private street within the subdivision. In addition, at no time shall any of the above-mentioned boats, trailers, or vehicles by placed upon a Multi-Family Lot for storage purposes.
Section 10.12. Outbuildings. No underground shelters or outbuildings (including trailers, tents, shacks or storage sheds) of any sort may be erected or constructed on any Multi-Family Lot. Provided, however, that temporary sales trailers and temporary construction trailers are allowed to be placed by The Mulvaney Group, Ltd., its subsidiaries or assigns, during the development and sales phases of said subdivision.
Section 10.13. Basketball Goals. No basketball goals of any kind shall be permitted on any Multi-Family Lot.
Section 10.14. Square Footage. No Unit shall be erected or placed upon any Lot in the subdivision containing less than nine hundred (900) square feet of finished heated area.
Section 10.15. Reserved.
Section 10.16. Reserved.
Section 10.17. Subdivision of Lots. No subdivision of said Multi-Family Lots nor combination of two or more Multi-Family Lots by sale or otherwise shall be made, except that Declarant and its successors and assigns, shall have the right to combine one Lot and any portion or whole of one or more additional Multi-Family Lots into one integral building lot. Declarant and its successors and assigns, shall also have the right to subdivide one or more Multi-Family Lots on which Declarant has under construction or has constructed a two-family residence. The foregoing notwithstanding, combination of two adjacent Units, and separation of previously combined adjacent Units, shall be permitted.
Section 10.18. Fire. See Section 8.3.
Section 10.19. General. Each Multi-Family Lot now or hereafter subjected to this Declaration shall be subject to all Easements. No structure of any type shall be erected upon a Lot which will interfere with rights and use of any Easement.
Section 10.20. Utility and Drainage. See Section 5.2(b) and (c).
Section 10.21. Emergency. There is hereby reserved a general easement to all firemen, ambulance personnel, police and security guards and all similar persons to enter upon the Property or any portion thereof, in the performance of the respective duties.
Section 10.22. Declarant’s Consent to Sales Materials. Until all of the Multi-Family Lots have been conveyed by Declarant, all sales and advertising materials, and all forms of deeds contracts for sale, and other closing documents for the sale of Multi-Family Lots by any Builder shall be subject to the prior approval of Declarant, which approval shall not be unreasonably withheld. If Declarant fails to notify a Builder of approval or disapproval within thirty days, Declarant shall be deemed to have approved the foregoing. Upon disapproval, Declarant shall provide Builder a list of required changes, and the above procedure shall be repeated until approval is obtained.
Section 10.23. Unintentional Violation. In the event of an unintentional violation of any of the foregoing restrictions with respect to any Multi-Family Lot, Declarant reserves the right (with the mutual written consent of the then Owner of such Lot) to change, amend, or release any portion of the foregoing restrictions as the same may apply to that particular Multi-Family Lot. Such release shall not be deemed to prejudice the enforceability of the same restriction against other Multi-Family Lots in the future.
Section 10.24. Declarant’s Right to Repurchase. If at any time Declarant sells any Multi-Family Lot to a person or persons, firm or corporation, and such person or persons, firm or corporation shall intend to sell such Multi-Family Lot before any residence is constructed on said Multi-Family Lot. Declarant reserves and shall have the right and option, but not the obligation, to purchase the Multi-Family Lot at a price not exceed the original selling price with the option expiring thirty (30) days after the Owner notifies the Declarant in writing of his, her or their intentions, said notice to be certified mail with return receipt, and said notice shall contain the name and address of the intended purchaser and the price and all other terms of the intended sale.
Section 10.25. New Construction Only. Construction of new buildings only shall be permitted, it being the intent of this covenant to prohibit the moving of any existing building onto a Multi-Family Lot and remodeling or converting same into a dwelling unit in this subdivision.
Section 10.26. Awnings. No patio coverings or awnings shall be permitted except as approved by the Association (or the Declarant prior to the conveyance of the last Unit or Multi-Family Lot.
Section 10.27. Recreational Equipment. All recreational equipment and personal property other than automobiles must be stored in such a manner as not to be visible from any street or to the Owners of any other Multi-Family Lot.
Section 10.28. Storm Doors, Screen Doors. No screen or storm doors shall be permitted on the front entrance to any Unit except those made of glass or plexiglass which are transparent and have been approved by the Association.
Section 10.29. Pumps, Tanks. No heat pump, propane tank, solar device, hot tub pump or other similarly exposed mechanical equipment other than those originally installed by the Declarant or a Builder approved by it, shall be placed on any Multi-Family Lot, unless it can be aesthetically shielded from public view.
Section 10.30. Window Units. No window air conditioning unit shall be installed in any Unit.
Section 10.31. Garages. No garage, carport or similar structure shall be constructed anywhere on the Property other than by Declarant or a Builder approved by it.
ARTICLE XI
INSURANCE
Section 11.1. Insurance Coverage to be Maintained – Use and Distribution of Insurance Proceeds.
(a) Commencing not later than the time of the first conveyance of a lot to a person other than the Declarant, the Association shall maintain, to the extent reasonable available:
(1) Property insurance on the Common Area and on all Multi-Family Lots, Buildings and Units, insuring against all risks of direct physical loss commonly insured against including fire and extended coverage perils. The total amount of insurance after application of any deductibles shall be not less than 80% of the replacement cost of the insured property at the time the insurance is purchased and at each renewal date, exclusive of land, excavations, foundations, and other items normally excluded from property policies. Any loss covered by a policy under this section shall be adjusted with the Association, but the insurance proceeds for that loss are payable to any insurance trustee designated for that purpose, or otherwise to the Association , and not to any mortgage or beneficiary under a deed of trust. The insurance trustee or the Association shall hold any insurance proceeds in trust for Lot Owners and lienholders as their interests may appear. The proceeds shall be disbursed first for the repair or restoration of the damaged property, and Lot Owners and lienholders are not entitled to receive payment of any portion of the proceeds unless there is a surplus of proceeds after the property has been completely repaired or restored, or the planned community is terminated; and
(2) Liability insurance in reasonable amounts, covering all occurrences commonly insured against for death, bodily injury, and property damage arising out of or in connection with the use, ownership, or maintenance of the common elements.
(b) The Association shall maintain in full force and effect fidelity insurance coverage protecting against dishonest acts by Association officers, directors, trustees, and employees and all others who are responsible for handling funds of the Association in the amount of one year’s operating budget, plus projected reserve balances during the budget year. If professional management is obtained by the Association and it has this coverage and it handles the funds, then this requirement will be satisfied.
(c) If the Board Directors so elects, officers and directors liability insurance covering the officers and directors of the Association may be obtained in such amount as the Board of Directors shall determine.
(d) The Association shall have the further right to purchase and maintain comprehensive general liability insurance coverage and such other insurance coverage as the board of directors may deem necessary and appropriate.
(e) Insurance policies carried pursuant to this Article shall provide that:
(1) Each Owner is an insured person under the policy to the extent of the Owner’s insurable interest;
(2) The insurer waives its right of subrogation under the policy against any Owner or member of the Owner’s household;
(3) No act or omission by any Owner, unless acting within the scope of the Owner’s authority on behalf of the Association, will preclude recovery under the policy; and
(4) If, at the time of a loss under the policy, there is other insurance in the name of an Owner covering the same risk covered by the policy, the Association’s policy provides primary insurance.
(f) NOT CONTAINTED IN ORIGINAL DOCUMENT
(g) An insurance policy issued to the Association does not prevent an Owner from obtaining insurance for the Owner’s own behalf.
(h) An insurer that has issued an insurance policy under this Article shall issue certificates or memoranda of insurance to the Association and, upon written request, to any Owner, mortgagee, or beneficiary under a deed of trust. The insurer issuing the policy may not cancel or refuse to renew it until 30 days after notice of the proposed cancellation or nonrenewal has been mailed to the Association, each Owner, and each mortgagee or beneficiary under a deed of trust to whom certificates or memoranda of insurance have been issued at their respective last known addresses.
(i) Any portion of the planned community for which insurance is required under this Article which is damaged or destroyed shall be repaired or replaced promptly by the Association unless (a) the planned community is terminated, (b) repair or replacement would be illegal under any State or local health or safety statute or ordinance, or (c) the Owners decide not to rebuild by an 80% vote, including 100% approval of Owners assigned to the Common Areas, Buildings or Units not to be rebuilt. The cost of repair or replacement in excess of insurance proceeds and reserves is a common expense. If any portion of the planned community is not repaired or replaced, (a) the insurance proceeds attributable to the damaged Common Area, Building or Unit shall be used to restore the damaged area to a condition compatible with the remainder of the planned community, and (b) the remainder of the proceeds shall be distributed to all the Owners or lienholders, as their interests may appear, in proportion to the common expense liabilities of all the lots.
(j) Premiums upon insurance policies purchased by the Association shall be paid by the Association as common expenses to be assessed and collected from all of the Owners.
(k) All insurance policies purchased by the Association shall be for the benefit of the Association.
ARTICLE XII
ENFORCEMENT
Section 12.1. Enforcement. In addition to such other rights as are specifically granted under the Declaration, the Board shall have the power to impose reasonable fines for violation of any duty imposed under the Declaration or the Bylaws, which shall be assessed as a Specific Assessment against the violating Owner. If any Owner shall violate or attempt to violate any of these restrictions, it shall be grounds for an action to recover sums due, damages, or injunctive relief, or both, maintainable by Declarant, the Association, or, in proper case, by an aggrieved Owner. In the event that any occupant, guest or invitee of an Owner violates the Declaration or the Bylaws and a fine is imposed, the fine shall first be assessed against the occupant. If the fine is not paid by the occupant within the time period set by the Board, the Owner shall pay the fine upon notice from the Association. Failure by Declarant, the Association or any other Owner to enforce any of the foregoing restrictions or other provisions shall not be deemed a waiver of their right to do so. The Association may not file any lawsuit for purposes of enforcing the Declaration except in accordance with Section 6.1 above.
Section 12.2. Notice. Prior to imposition of any sanction hereunder, the Board or its delegate shall serve the alleged violator with written notice describing (i) the nature of the alleged violation, (ii) the proposed sanction to be imposed, (iii) a period of not less than ten days within which the alleged violator may present a written request for a hearing; and (iv) a statement that the proposed sanction shall be imposed as contained in the notice unless a challenge is begun within ten days of the notice. If a timely challenge is not made, the sanction stated in the notice shall be imposed.
Section 12.3. Hearing. If a hearing is requested within the allotted ten day period, the hearing shall be held in executive session affording the alleged violator a reasonable opportunity to be heard. Prior to the effectiveness of any sanction, proof of a proper notice shall be placed in the minutes of the meeting. Such proof shall be deemed adequate if a copy of the notice, together with a statement of the date and manner of delivery, is entered by the officer, director, or agent who delivered such notice. The notice requirement shall be deemed satisfied if the alleged violator appears at the meeting. The minutes of the meeting shall contain a written statement of the results of the hearing and the sanction, if any, imposed. The Board may, but shall not be obligated to, suspend any proposed sanction if the violation is cured within the ten day period. Such suspension shall not constitute a waiver of the right to sanction future violations of the same or other provisions and rules by any Person.
Section 12.4. Appeal. If a hearing is conducted before any body other than the Board, the violator shall have the right to appeal the decision to the Board of Directors. To perfect this right, a written notice of appeal must be received by the Board within 30 days after the hearing date.
Section 12.5. Additional Enforcement Rights. The Board may elect to enforce any provision of the Declarations or the By-Laws by self-help (specifically including, but not limited to, the towing of vehicles that are in violation of parking rules and regulations) or by suit to enjoin any violation or to recover monetary damages or both without the necessity of compliance with the procedure set forth above, and entry upon property for the purpose of exercising this right shall not be deemed a trespass. In any such action, to the maximum extent permissible, the Person responsible for the violation of which abatement is sought shall pay all costs, including reasonable attorney’s fees actually incurred.
ARTICLE XIII
GENERAL PROVISIONS
Section 13.1. Lawsuits. The Association may not institute formal legal proceeding for any purpose, other than the collection of Assessments owed, without the affirmative approval of two-thirds of the votes entitled to be voted.
Section 13.2. Severability. Invalidation of any one of the covenants, conditions or restrictions of this Declaration, or any part thereof, by judgment or court order shall in no way affect any of the other provisions not expressly held to be void and such remaining provisions shall remain in full force and effect.
Section 13.3. Effective Period. The covenants, conditions and restrictions of this Declaration shall run with the land and bind the Association and the Owners of Lots for a period of twenty-five (25) years from the date this Declaration is recorded, after which time such covenants, conditions and restrictions shall be automatically extended for successive periods of ten (10) years until amended or terminated as herein provided. The reserved easements shall run permanently with each Lot.
Section 13.4. Amendment. This Declaration may not be materially altered, amended, modified, or changed at any time except by a written document executed by the Owners representing two-thirds of the votes entitled to vote. Provided, however, that as long as Declarant owns any portion of the Property subject to the Declaration, any Amendments to this Declaration must be approved by the Declarant. Any such Amendment must be recorded in the Mecklenburg County Public Registry and shall not be effective until so recorded.
The foregoing notwithstanding, any material change to this Declaration shall, so long as there is a Class B Member, require the approval of HUD/VA.
The foregoing notwithstanding, the Declarant may amend this Declaration at any time to correct scrivener’s errors, patent or latent ambiguities, or to make any other modifications whatsoever that do not materially adversely affect the rights or responsibilities of any Owner. Additionally, Declarant may amend this Declaration at any time if such amendment is necessary for the exercise of any development right.
Section 13.5. Termination. This Declaration may be terminated only by agreement of Owners representing at least 80% of the votes entitled to vote. An agreement to terminate shall be evidenced by the execution of a termination agreement, or ratification thereof, in the same manner as a deed, by the requisite number of Owners. The termination agreement shall specify a date after which the agreement will be void unless it is recorded before that date. A termination agreement and all ratifications thereof shall be recorded in the county in which the Subdivision is located and is effective only upon recordation.
Section 13.6. Enforcement of Expenses as a Lien Upon Property. All costs incurred by the Declarant or the Association in the enforcement of the terms and conditions hereof, including court costs, fines levied, costs of correcting deficiencies by any Owner of a Lot or Lots, and reasonable attorneys’ fees in the enforcement hereof, shall be a personal liability of the Owner or Owners of such Lot or Lots subject to the enforcement or collection hereunder, and furthermore such costs and fees shall be a lien upon the Lot of the Owner, and each Owner agrees to accept such personal liability and the lien enforcement rights of the Declarant and the Association by acceptance of a deed to any Lot or Lots in the subdivision, provided, however, said lien shall be subject to the limitations contained in Article Vl, hereof.
Section 13.7. Amendment to Conform to Requirements of FHA/VA/FHMA/FHLMC. Declarant, without consent or joinder of the Association or any other Owner of Lot or Lots, may amend this Declaration to conform to the requirements of the FHA/VA/FHMA/FHLMC at any time during which Declarant owns any of the Property.
Section 13.8. FHA/VA Approval. In the event the Declarant has arranged for and provided purchasers of Lots with FHA/VA insured mortgage loans, then as long as the Class B Membership exists the following actions will require the prior approval of the Federal Housing Administration or the Veterans Administration: Annexation of additional properties, other than as provided in Article II hereof, and amendment of this Declaration of Covenants, Conditions, and Restrictions.
In the event the necessary HUD/FHA/VA, or other governmental approval is not obtained for any action as called for in this Declaration, such failure shall not void said action, but shall merely make such action subject to subsequent disapproval or modification by the appropriate governmental agency.
Section 13.9. Headings. Article and section headings are inserted for convenient reference and are not to be construed as substantive parts of the paragraphs to which they refer, except to the extent they differentiate by different classes of Lots, Members, or dues and Assessments.
Section 13.10. Assignment and Delegation. The Declarant reserves and shall have the right and option at any time and from time to time to assign and delegate any or all of its rights and its duties under this Declaration.
Section 13.11. Bank of America, N.A. Bank of America, N.A. and TIM, Inc. (Beneficiary and Trustee, respectively of that Deed of Trust executed on September 16, 1994 and recorded in book 7916 at Page 1 of the Mecklenburg County Registry, as amended in Book 9893 at page 931 and Book 10600 at Page 214, and which may have been or may be further modified from time to time, which encumbers the Property, approve this Declaration and agree to abide by its terms, and further recognize that they are not a Declarant hereunder, nor do they assert any rights, or accept any responsibilities of the Declarant. Their execution hereof is made only to express consent to be bound by said Declaration.
