Standard Features
Covenants
Bylaws of Valley Crest Townhome Owners Association,
Inc.
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ARTICLE I
PLAN OF COMMON PROPERTY CONTROL
Willwood, LLC, hereafter known as the “Declarant,”
is the owner of certain lands lying in Durham County, North
Carolina, more particularly described in a Declaration of
Covenants, Conditions and Restrictions for Valley Crest Townhomes
(herein “Declaration”), and has submitted said
lands to membership control pursuant to the Declaration recorded
in Book ________ Page _______, Durham County Registry.
The
lands on which said Declaration is imposed shall be known
as VALLEY CREST TOWNHOMES.
All present and future owners, mortgagees,
lessees, and occupants within the Property, and their agents,
servants and employees, and any other persons who may make
use of the facilities of the Property in any manner are subject
to these Bylaws and to the Rules and Regulations adopted pursuant
hereto, and any amendments to these Bylaws upon same being
duly adopted.
The acceptance of a deed of conveyance to, or entering into
a lease to, or the act of occupancy of, any Lot within the
Property by any person shall conclusively establish the acceptance
and ratification by such person of the Bylaws (and any Rules
and Regulations adopted pursuant hereto), the Articles of
Incorporation and the Declaration as they may be amended from
time to time, and shall constitute and evidence an agreement
by such persons to comply with these governing documents.
ARTICLE II
DEFINITIONS
“Association”
shall mean VALLEY CREST TOWNHOME OWNERS ASSOCIATION, INC.,
a North Carolina non-profit corporation which is an association
of Lot owners of Valley Crest Townhomes Subdivision.
“Board”
shall mean the Board of Directors of the Association.
. “Common
Elements” or “Common Areas” are used interchangeably
and shall mean any real estate owned or leased by the Association,
other than a Lot.
“Declarant”
shall mean and refer to Willwood, LLC, its successors and
assigns to whom it shall make specific written assignments
of its rights under these Bylaws.
“Declaration”
shall mean that instrument recorded in Book ____ Page ____
Durham County Registry, as from time to time amended.
“Lot”
shall mean and refer to any plot of land shown on any recorded
plat map of the Property and designate for separate ownership
or occupancy.
“Owner”
or “Lot Owner” shall mean and refer to the record
owner, whether one or more persons or entities, of title to
any Lot which is a part of the Property, including the Declarant
so long as any Lot as hereinafter defined is owned by the
Declarant, which is a part of the Property, including contract
sellers, but excluding those having such interest merely as
the security for the performance of an obligation.
The “Property”
shall mean all of the lands and appurtenances, subjected to
the Declaration, which lands are more fully described in said
Declaration and all additional property thereto, as may be
hereafter brought within the jurisdiction of the Association.
“Rules
and Regulations” shall mean those written actions of
the Board, duly adopted, and amendments thereto, interpreting
and applying the provisions of the Declaration and these Bylaws
and establishing and prescribing the administration, management,
use, operation, and maintenance of the Common Elements and
Buildings, including but not limited to, the establishment
and imposition of fines, fees, and penalties for violation
of the Declaration, Bylaws, or Rules and Regulations.
“Member”
shall mean and refer to every person or entity who holds membership
in the Association.
ARTICLE III
OFFICES
The principal
office of the Association shall be located at 8341 Bandford
Way, Suite 007, Raleigh, North Carolina 27615.
The registered
office of the Association may, but need not be, identical
with the principal office, but shall be located in North Carolina.
The Association
may have such other offices, either within or without the
State of North Carolina, as the Board may from time to time
determine or as the affairs of the Association may require.
ARTICLE IV
ASSOCIATION OF LOT OWNERS
The
qualification of members, the manner of their admission to
membership and termination of such membership shall be as
set forth in the Declaration.
An annual meeting of the Association shall be held for the
purpose of electing members to the Board of Directors and
for the transaction of such other business as may be properly
brought before the meeting. With the exception of the first
annual meeting which may be held at anytime, the annual meetings
shall be held at 6 pm on the third Thursday of January of
each year, unless such day shall be a legal holiday, in which
event the meeting shall be held at the same time the following
day which is not a legal holiday.
If an annual meeting is not held on the day
designated in the Bylaws, a substitute annual meeting may
be called in the same manner as a special meeting. A meeting
so called shall be designated and treated for all purposes
as the annual meeting.
Special meetings of the Association may be called at any time
by the President, a majority of the members of the Board of
Directors or by the President upon the written request of
the Owners of not less than ten percent (10%) of the voting
interests of Class A and Class B members as established by
the Declaration.
All meetings of the Association shall be held at the Property,
or at such other place in the County where the Property is
located as shall be designated in the notice of meeting.
Written or printed notice stating the place, day and hour
of the meeting shall be delivered or mailed by first class
mail, postage prepaid, hand-delivered or sent via electronic
means not less than ten (10) no more than sixty (60) days
prior to the date of the meeting by the Secretary to each
person entitled to vote at such meeting, unless a different
time period is required by the Declaration.
In the case of an annual meeting, substitute annual meeting
or special meeting, the notice of the meeting shall state
the time and place of the meeting as well as the items on
the agenda to be considered, including, but not limited to,
the general nature of any proposed amendment to the Declaration
or Bylaws, any budget matters, or any proposal to remove an
officer or director.
When a meeting is adjourned for thirty (30) days or more,
notice of the reconvening of the adjourned meeting shall be
given as in the case of an original meeting. When a meeting
is adjourned for less than thirty (30) days in one adjournment,
it shall not be necessary to give notice of the reconvening
of the adjourned meeting other than by announcement at the
meeting which the adjournment is effective.
Unless
a different percentage is required in the Articles of Incorporation,
Declaration or a specific provision to these Bylaws, a quorum
is present throughout any meeting of the Association if persons
entitled to case ten percent (10%) of the votes which may
be cast for the election of the Board of Directors of the
Association are present in person or by proxy at the beginning
of the meeting. Unless otherwise expressly provided herein,
any action, consistent with the notice of such meeting, may
be taken at any meeting of the Association at which quorum
is present upon the affirmative vote of the members having
a majority of the total votes present at such meeting.
If a quorum is not present at the opening of any meeting,
the meeting may be adjourned from time to time by vote of
a majority of the voting interests present, either in person
or by proxy, and shall be reconvened at the date and time
determined at the adjourned meeting, subject to the notice
requirements set firth in Section 6 of this Article. Upon
the reconvening of any meeting adjourned for lack of a quorum,
the quorum required at such subsequent meeting shall be one-half
(½) that required at the preceding meeting.
There shall be one person with respect to each Lot who shall
be entitled to vote the voting interest of the Lot at any
meeting of the Association, herein referred to as the “voting
member.” The voting member may be the Owner of a Lot,
or an owner designated by a majority of the several Owners
of a Lot, or may be some other person designated by such Owner
or Owners to act as proxy on his or their behalf and who need
not be the owner. Designation of the voting member or a proxy
shall be made in writing to the Secretary and shall be revocable
at any time prior to the meeting by actual notice to the Secretary
by the Owner or majority of the Owners. Once a meeting has
been commenced, a Lot owner may not revoke a proxy given except
by written notice of revocation delivered to the person presiding
over the meeting. A proxy is void if not dated, and a proxy
shall terminate at the time specified in the proxy or one
year from date, whichever is earlier.
If only one of the multiple Owners of a Lot
is present at a meeting of the Association, he is entitled
to cast all the votes allocated to the Lot. If more than one
of the multiple Owners are present, the votes allocated to
that Lot may be cast only in accordance with the agreement
of a majority in interest of the Multiple Owners. Majority
agreement is conclusively presumed if any one of the multiple
Owners casts the votes allocated to the Lot without protest
being made promptly to the person presiding over the meeting
by any of the other Owners of the Lot. Fractional voting is
prohibited.
If a Lot is owned by more than one person, each Owner of
the Lot may vote or register protest to the casting of votes
by the other Owners of the Lot through duly executed proxy.
The vote cast by, or in behalf of, the Owner
or Owners of a Lot shall be that voting interest specified
in the Articles of the Incorporation. In all elections for
members of the Board of Directors, no voting member shall
be entitled to vote on a cumulative voting basis for the director
or directors to be elected, and the candidate or candidates
receiving the highest number of votes with respect to the
number of offices to be filled shall be deemed elected.
Any Lot Owner, at any time, may waive notice of any meeting
of the Association in writing, and such waiver shall be deemed
equivalent to the giving of such notice. Attendance of a Lot
Owner at any meeting of the Association shall constitute a
waiver of notice by him of the time and place thereof except
where a Lot Owner attends a meeting for the express purpose
of objecting to the transaction of any business because the
meeting was not lawfully called. If all of the voting members
are present at any meeting of the Association, no notice shall
be required, and any business may be transacted at any meeting.
Any action which may be taken at a meeting
of the Association may be taken without a meeting if a consent,
in writing, setting forth the action so taken, shall be signed
by all of the persons who would be entitled to vote upon such
an action at a meeting and filed with the Secretary of the
Association to be kept in the Association minute book.
ARTICLE V
BOARD OF DIRECTORS
The business shall be managed and directed by the Board of
Directors of the Association or by such executive committees
as the Board may establish pursuant to these Bylaws. If any
of the authority of the Board of Directors is vested in any
committee, one member of each such committee shall be a Board
member.
There shall be an initial Board of three (3) directors, appointed
by the Declarant, who shall serve until their successors are
appointed or elected and qualified as herein provided. The
Board of Directors may increase the number of directors from
time to time as it sees fit, so long as the total number of
directors is nine (9) or less.
Until such time as the Class B membership
shall terminate Declarant shall be the only Member to select,
or elect, the Board of Directors.
Notwithstanding the foregoing, the Declaration may, at any
time, voluntarily surrender its right as a Class B Member
and to appoint members of the Board of Directors before the
occurrence of those events of termination set forth in the
Articles of Incorporation.
At such time as Declarant’s Class B membership rights
to appoint the members of the Board of Directors expires or
is surrendered, the terms of the directors appointed by Declarant
shall thereupon immediately terminate and the vacancies thereby
created shall be filled by the members of the Association
upon a meeting called for that purpose to serve until the
next annual meeting of members. At the end of such period
when Declarant’s Class B membership rights have terminated
or upon surrender of those rights and if all Lots have not
been transferred by Declarant for all purposes shall be deemed
a Lot Owner and shall be entitled to vote in such elections
as any other Lot Owner. During the times when it has the right
to designate Directors, the Declarant shall have the right
in its sole discretion to replace any Director or Directors
it appointed and designate their successors.
Except for the appointed directors provided for in Section
3 of this Article while Declarant is a Class B member, and
as otherwise provided in Section 5 of this Article, the directors
shall be elected at the annual meeting of the Association;
and those candidates who receive the highest number of votes
shall be elected.
Any
elected director may be removed from office, with or without
cause, by the affirmative vote of sixty-seven percent (67%)
of the voting interests of Lot Owners present and entitled
to vote at a special meeting called for that purpose; provided
that Class A Members shall have no vote in, or right to remove
a director appointed by Declarant so long as the Class B membership
exists. If any directors are so removed, new directors may
be elected at the same meeting.
An elective vacancy occurring in the Board of Directors, including
directorships not filled by the voting members, may be filled
by a majority of the remaining directors, no less than a quorum,
or by the sole remaining director.
The Board of Directors shall receive reimbursement for expenses,
but shall receive no compensation for their services unless
expressly allowed by the Association upon the affirmative
vote of its members.
The Board of Directors may, by resolution adopted by a majority
of the number of directors fixed by these Bylaws, designate
two or more directors to constitute an executive committee,
which committee, to the extent provided such resolution, shall
have and may exercise all of the authority of the Board of
Directors in the management of the Property.
The
Board of Directors shall have the powers necessary for the
administration of the affairs of the Association as specified
by law, the Declaration or these Bylaws, and may do all such
acts and things, except such acts as by law, by the Declaration,
or by these Bylaws may not be delegated to the Board of Directors.
It
shall be the duty of the Board of Directors to:
- Administer, operate, maintain and repair the Common
Elements;
- Enter upon any Lot and perform any repairs, maintenance
or construction for which the Association is responsible
at reasonable times and hours and with as little inconvenience
to the Lot Owners as practicable. The Association shall
repair any damages to the Lot caused by such repair, maintenance
or construction, and all costs incurred in performing
these duties shall be a Common Expense of the Property,
unless the Board shall determine that the repairs, maintenance
or construction was necessitated by the negligence, misuse,
unlawful act or act in violation of the Declaration, these
Bylaws of the Rules and Regulations of the Association
by the Lot Owners, its agents, contractors, family members,
guests, invitees, tenants or contract purchasers, in which
event such costs may be assessed against the Lot Owner,
as by the Declaration prescribed;
- determine the Common Expenses arising from the costs
of administration, operation, care, upkeep, maintenance,
repair, and construction of the Common Elements, including,
without limitation, reserves for repair, reconstruction
or replacement;
- Fix and assess in the manner provided by law in the
Declaration, the proportionate part of the Common Expenses
for each Lot Owner within the Property;
- Collect and enforce the collection of Common Expenses
in the manner provided by law and in the Declaration,
including, but not limited to, legal proceedings for the
enforcement of liens and provide written evidence of payment
upon request therefore;
- Employ, supervise and dismiss personnel, managers or
independent contractors necessary to the maintenance and
operation of the Common Elements;
- Adopt, amend, publish and enforce reasonable Rules
and Regulations that it deems advisable and necessary
for the proper administration, operation, maintenance,
conservation, and beautification of the Property and for
the health, comfort, safety and general welfare of the
Owners and occupants of the Lots. Copies of the published
Rules and Regulations and amendments thereto shall be
given to all the Owners and occupants and the Association
and Property shall be administered, operated and maintained
in conformity with such rules and regulations;
- Designate depositories for Association funds and the
officers, agents and/or employees having the authority
to deposit and withdraw such funds; and, in its discretion,
to require such officers, agents or employees to be bonded
in such amounts as it deems necessary;
- Sign all mortgages, deeds of trust, agreements, contracts,
vouchers and payment of expenditures, deeds and other
instruments in such manner as from time to time shall
be determined by written resolution of the Board. In the
absence of such determination by the Board, such documents
shall be signed by the President and the Secretary;
- Procure and maintain adequate insurance of such nature
and in such amounts as provided in the Declaration, and
such other insurance as the Board may deem necessary or
appropriate, including, without limitation, hazard insurance,
liability insurance and officers and directors liability
coverage;
- Appoint such committees as are provided for in these
Bylaws and the Declaration or as otherwise deemed appropriate
by the Board, including, but not limited to, a Nominating
Committee and an Architectural Committee;
- Exercise their powers in good faith and do and perform
such other matters and things not expressly prohibited
by law, the Declaration, or these Bylaws as are necessary
and appropriate to the proper administration, operation
and maintenance of the Association;
- Prepare an annual budget in which there shall be established
the assessments of each Lot Owner for the Common Expenses;
- Pay all taxes, charges and assessments which are or
may become liens against any part of the Common Elements
and assess the same against the Members and their respective
Lots;
- To enforce by legal means or proceedings the provisions
of the Articles of Incorporation, the Bylaws, the Declaration
and the Rules and Regulations promulgated hereunder;
- To review and to approve architectural changes, alteration
or modifications of Lots and the improvements thereon;
- To establish fines and penalties for late payment of
assessments and for violations of the Declaration, Bylaws,
and the Rules and Regulations and to provide for the suspension
of voting rights of any member, or its Lot occupants,
as well as the right to use any amenities or recreational
facilities during any period in which such member shall
be in default on the payment of any assessment levied
by the Association and to suspend such voting rights and
other privileges for a period not to exceed sixty (60)
days after notice of hearing for other infractions;
- To impose reasonable charges for services especially
provided to one or more Lot Owners which charges or costs
should not otherwise be a Common Expense;
- To institute, defend or intervene on behalf of the
Association in litigation or administrative procedures
affecting the Property;
- To cause additional improvements to be made to the
Common Elements;
- To grant easements, leases, license, and concessions
through or over the Common Elements; and
- To exercise all other duties to which similar organizations
have the power to perform and as by law provided.
Every elected member of the Board shall be a Lot Owner unless
the Owner is a corporation, partnership, trust or other legal
entity other than a natural person or persons, in which event
any officer, director, agent or employees of such corporation,
partner or such partnership, beneficiary or trustee of such
trust or manager of such other legal entity shall be eligible
to serve as a member of the Board, but members of the Board
appointed by the Declarant need not be Owners.
The members of the Board of Directors shall
not be liable to the Lot Owners for any mistake of judgment,
negligence or otherwise except for their own willful misconduct
or bad faith. The Association shall indemnify and hold harmless
each of the members of the Board against all contractual liability
to others arising out of contracts made by the Board on behalf
of the Association unless any such contract shall have been
made in bad faith or contrary to the provisions of the Declaration
or these Bylaws. It is intended that the members of the Board
of Directors shall have no personal liability with respect
to any contract made by them on behalf of the Association,
except to the extent of their liability of Lot Owners, it
is also intended that the liability of any Lot Owner arising
out of any contracts made by the Board of Directors or out
of the aforesaid indemnity in favor of members of the Board
shall be limited to such proportions of the total liability
thereunder as his voting interest in the Common Elements bears
to the interest of all of the Lot Owners. Every agreement
made by the Board or by the manager on behalf of the Association
shall provide that the members of the Board, or the manager,
as the case may be, are acting only as agents for the Association,
and shall have no personal liability thereunder (except as
Lot Owners), and that each Lot Owners liability thereunder
shall be limited to such proportion of the total liability
thereunder as its voting interest in the Association bears
to the voting interest of all Lot Owners.
ARTICLE VI
MEETINGS OF DIRECTORS
The initial Board of Directors shall meet prior to conveyance
of the first Lot by the Declarant. No notice to the Directors
shall be necessary in order to legally constitute such meeting,
provided that a quorum shall be present.
A regular meeting of the Board shall be held immediately after
and at the same place as the annual meeting or substitute
annual meeting of the Association. The Board may provide by
adoption of an appropriate resolution for the time and place
within the County in which the Property id Located for other
regular meetings of the Board.
Special meetings of the Board may be called by or at the request
of the President or by any two Directors. Such meetings may
be held at any place within the County in which the Property
is located.
Regular meetings of the Board may be held without notice.
The person or persons calling a special meeting of the Board
shall give actual notice, oral or written, to all Directors
of the time, place and purpose of such meeting at least two
(2) days prior thereto.
Attendance by a Director at a meeting shall constitute a
waiver of notice of such meeting except where a Director attends
the meeting for the express purpose of objecting to the transaction
of any business because the meeting was not lawfully called.
Any member of the Board of Directors may have written waiver
of notice at any time of any meeting of the Board, and such
waiver shall be deemed equivalent to the giving of such notice.
If all of the members of the Board are present at any meeting
thereof, no notice shall be required and any business may
be transacted at such meeting.
A
majority of the number of Directors fixed by these Bylaws
shall be required for and shall constitute a quorum for the
transaction of business at any meeting of the Board of Directors.
Except as otherwise provided in this section, the act of the
majority of the Directors present at a meeting at which a
quorum.
Each meeting of the Board of Directors shall be presided over
by the President and in the absence of the President, by the
Vice-President, and in the absence of the Vice-President,
by any person selected to preside by vote of the majority
of the Directors present. The Secretary, or in his absence,
an Assistant Secretary, or in the absence of both the Secretary
and the Assistant Secretary, any person designated by the
president by the presiding officer of the meeting shall act
as Secretary of the meeting.
Any action taken by a majority of the Directors
without a meeting shall constitute Board action if written
consent to the action in question is signed by all the Directors
and filed with the minutes of the proceedings of the Board,
whether done before or after the action is taken.
The Board, and all committees to which the Board shall have
delegated any of its authority, shall keep minutes of all
the proceedings of the Board and the committees.
The Board shall require any officer or employee of the Association
handling or responsible for Association funds to be covered
by an adequate fidelity bond. The premiums of such bond shall
constitute a Common Expense.
ARTICLE VII
OFFICERS
The principal officers of the Association shall be a president,
a secretary, a treasurer, and such vice presidents, assistant
secretaries, assistant treasurers and other officers as the
Board may from time to time elect. Any two or more offices
may be held by the same person, except that of the President
and Secretary may not be held by the same person.
A director designated by the Declarant shall serve as President
so long as the Declarant designated the Board members. All
other officers of the Association shall be elected by the
Board of Directors, and such elections may be held at the
regular annual meetings of the Board; provided, however, that
prior to the first annual meeting, the Declarant shall appoint
the officers from among the initial Board.
Each officer shall hold office for a period of one (1) year
or until his death, resignation, retirement, removal, disqualification
or his successor is elected and qualified.
Any
officer or agent elected or appointed by the Board may be
removed by the Board with or without cause; any officer or
agent appointed or designated by the Declarant may be removed
by the Declarant with or without cause. Such removal, however,
shall be without prejudice to the contract rights, if any,
of the person so removed.
No officer shall receive compensation from the Association
for acting as such, but the Board may reimburse any officer
for any direct expenses incurred by him in the performance
of his duties as such officer and such reimbursement shall
be a Common Expense.
The President shall be the principal executive officer of
the Association and, subject to the control of the Board of
Directors, shall supervise and control the management of the
Property. The President shall, when present, preside at all
meetings of the Board and the Association, and, in general,
shall perform all duties incident to the office of the President
and such other duties as my be prescribed from time to time
by the Board. The President shall prepare, execute (with the
Secretary), certify and record amendments to the Declaration
on behalf of the Association.
The Vice President, and if there be more than one, the Vice
Presidents, shall, in the absence of disability of the President,
have the powers and perform the duties of said office. In
addition, each Vice President shall perform such other duties
and have such other powers as shall be prescribed by the President.
The Secretary shall keep accurate records of the acts and
proceedings of all meetings of the Association and of the
Board. The secretary shall give, or cause to be given, all
notices required by law and these Bylaws, and the Secretary
shall have general charge of the minute books and records
of both the Association and the Board. The Secretary shall
sign such instruments as may require his signature, and, in
general, shall perform all duties incident to the office of
the Secretary and such other duties as may be assigned to
him from time to time by the President or by the Board of
Directors.
The Treasurer shall have custody of all Association funds
and securities and shall receive, deposit or disburse the
same under the direction of the Board of Directors. He shall
keep full and accurate records of the finances of the Association
in books specially provided for that purpose. He shall cause
a true statement to be prepared at the close of each fiscal
year setting forth, in reasonable detail, the assets and liability
of the Association, the changes in surplus for such fiscal
year, and the result of the operations of the Association.
The statement shall be filed and kept available for inspection
by any Lot Owner for a period of three (3) years and the Treasurer
shall mail or otherwise deliver a copy of the latest statement
to each Lot Owner and member of the Board of Directors annually
on or before thirty (30) days prior to the annual meeting
of the Association covering the preceding calendar year. The
Treasurer shall also prepare and file all reports and returns
required by Federal, State or local laws, and shall generally
perform all other duties as may be assigned to him from time
to time by the President or Board of Directors.
The Assistant Secretaries and Assistant
Treasurers, if any, shall, in the absence or disability of
the Secretary or Treasurer, respectively, have all the powers
and perform all of the duties of those officers, and they
shall, in general, perform such other duties as shall be assigned
to them by the Secretary or Treasurer, respectively, or by
the President or Board of Directors.
ARTICLE VIII
OPERATION OF THE PROPERTY
The Board,
from time to time, and at least annually, shall prepare a
budget for the Common Elements, determine the amount of the
“Common Expenses” (as defined in the Declaration)
payable by the Lot Owners to meet the expenses of the Common
Elements, and shall allocate and assess the Common Expense
amount to the Lot Owners thereto as set forth in the Declaration.
The Common Expenses of the Common Elements shall include,
among other things and without limitation, the administrative
expenses of the Association; maintenance, repair and replacement
costs of the Common Elements; utilities costs; Lot acquisition
costs; and the costs of all premiums for insurance obtained
pursuant to the provisions of the Declaration. The budget
of the Association, in the discretion of the Board, and as
necessary, may include, without limitation, amounts for: funding
deficits for any prior year, a reserve for working capital,
a reserve for maintenance and replacement, and a general operating
reserve.
All Lot Owners shall be obligated to pay
the Common Expenses assessed by the Board of Directors pursuant
to the provisions of Section 1 of this Article at such time
or times as the Board shall determine.
No Lot Owner shall be liable for the payment of any part
of the Common Expenses assessed against his Lot subsequent
to the consummated sale, transfer or other conveyance by him
(made in accordance with the provisions of the Declaration
and applicable restrictions of record) of such Lot. A purchaser
of a Lot shall be jointly and severally liable with the seller
for the payment of the Common Expenses assessed against such
Lot prior to the acquisition by the purchaser of such Lot,
without prejudice to the purchaser’s right to recover
from seller the amounts paid by the purchaser therefore. Provided
that a first-lien mortgagee shall not be liable for, and such
Lot shall be subject to, a lien for the payment of Common
Expenses assessed prior to such foreclosure sale, and such
unpaid Common Expenses shall be deemed to be Common Expenses
collectible from all of the Lot Owners, including such purchaser,
his successor and assigns.
The annual assessments provided for herein shall commence
as to all Lots on the first day of the month following conveyance
of the Common Elements to the Association and as to all Living
Units, as Living Units on the first of the month following
the date a Lot became a Living Unit. All Lots in subsequently
annexed properties, similarly, shall be subject to assessment
commencing on the first day of the first month following conveyance
of the Common Elements therein to the Association. The first
annual assessment shall be adjusted according to the number
of months remaining in the calendar year. The Board shall
fix the amount of the annual assessment against each Lot at
least thirty (30) days in advance of each annual assessment
period. Written notice of the annual assessment shall be sent
to every Owner subject thereto. The due dates shall be established
by the Board. The Association shall, upon demand, and for
a reasonable charge if it deems appropriate, furnish a certificate
signed by an officer of the Association setting forth whether
the assessments on a specified Lot have been paid. A properly
executed certificate of the Association as to the status of
assessments on a Lot is binding upon the Association as of
the date of issuance.
In addition to regular assessments to be charged and paid
hereunder, each Lot Owner shall, at the time of the initial
sale of each Lot by Declarant to that Lot Owner, pay to the
Association, a sum equal to two (2) months’ assessments
on the Lot as additional working capital of the Association.
These amounts need not be segregated, but may be commingled
with regular assessment funds. This working capital amount
shall be paid by the Lot Owner notwithstanding the fact that
Declarant may have made prior regular assessment payments
to the Association on the Lot being sold pursuant to the provisions
of the first sentence hereunder.
Any assessment
not paid within thirty (30) days after the due date shall
be delinquent, in default and shall bear interest at the highest
rate then permitted by North Carolina Law. The Association
may bring an action at law against the Owner personally obligated
to pay the same plus interest, costs, late payment charges
and reasonable attorney’s fees, and/or proceed with
any other permissible legal remedy then available to the Association.
No Owner may waive or otherwise escape liability for the assessments
provided for herein by non-use of the Common Elements or abandonment
of his Lot.
Any assessment levied against a Lot remaining unpaid for
a period of 30 days or longer shall constitute a lien on that
Lot when a claim of lien is filed of record in the office
of the clerk of superior court of Durham County, North Carolina.
The claim of lien shall state the description of the Lot encumbered
thereby, the name of the record owner at the time the lien
is filed, the name and address of the Association, and the
amount due and date when due. 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.
The claim of lien shall be recordable any time after thirty
(30) days after the due date of the assessment or any installment
thereof and the lien shall continue in effect until all sums
secured by said lien as herein provided shall have been fully
paid. Such claims of lien shall include all assessments which
are due and payable when the claim of lien is recorded, fees,
charges, late charges, fines, interest and other charges imposed
pursuant to North Carolina General Statutes Sections 47F-3-103,
47F-3-107, 47F-3-107.1 and 47F-3-115, plus interest, costs,
attorney’s fees, advances to pay taxes and prior encumbrances
and interest thereon, all as above provided. Such claims of
lien shall be signed by an officer or agent of the Association.
Upon full payment of all sums secured by such claim of lien,
the same shall be satisfied of record.
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All maintenance and repairs to any Lot, ordinary or extraordinary
(other than maintenance of and repairs to any portion thereof
required to be maintained by the Association) shall be made
by the Owner of such Lot.
- All maintenance, repairs and replacements
to the Common Elements, whether located inside or outside
of the Lots (unless necessitated by the negligence, misuse,
or neglect of a Lot Owner, his guests, lessees, employees,
servants or invitees, agents or contractors, in which case
such expense shall be charged to such Lot Owner), shall
be charged to all Lot Owners as a Common Expense of the
property.
The Common Elements shall be used only for the purposes for
which they are intended in furnishing services and facilities
for the enjoyment of the Lots.
Until all of the Lots of the Declarant referred to in Article
1, Section 1, hereof have been sold, neither the Lot Owners
nor the Board shall interfere with the sale of Lots. Declarant
may make such use of the unsold Lots and the Common Elements
or may facilitate such completion and sale, including, but
not limited to, the rental of the same, showing of the Lots
and the display of signs and maintenance of a sales office.
The sewer system serving the Property
including all tanks, pumps, and related equipment shall be
owned by the Association as part of the Common Elements serving
the Property, if not owned by a municipality.
Rules and Regulations concerning the use of the Common Elements
may be promulgated and amended by the Board. Copies of such
Rules and Regulations shall be furnished by the Board to each
Lot Owner, and all amendments and new Rules and Regulations
shall be furnished to Lot Owners prior to the time that amendment
or new rule or regulation becomes effective.
All charges for utilities used in connection with the maintenance
and use of the Common Elements shall be a Common Expense.
ARTICLE IX
RECORD AND AUDITS
The Board of Directors or the Treasurer shall keep detailed
records of actions of the Board and the Treasurer, minutes
of the meetings of the Board of Directors, minutes of meetings
of the Association, and financial records and book of accounts,
including a chronological listing of receipts and expenditures,
which, among other things, shall contain the amount of each
assessment of the Common Expenses against each Lot, the date
when due, and amounts paid thereon, and the balance remaining
unpaid, including maintenance and repair expenses of the Common
Elements and any other expenses incurred. The financial records
and books of account shall be available for examination by
any Lot Owner or his duly authorized agent or attorney at
convenient hours on working days by prior arrangement with
the Board or the manager. An outside audit of all receipts
and expenditures of the Association and Property shall be
rendered by the Board of all Lot Owners on or before the 90th
day following the close of each fiscal year, covering the
preceding year. All books and records shall be kept in accordance
with good and acceptable accounting practices. A copy of the
audit shall be furnished to all mortgagees of Lots who have
requested the same.
ARTICLE X
OPERATION PRIOR TO INITIAL MEETING OF BOARD
Prior to the first meeting of the initial Board of Directors,
all functions of the Association and of the Board of Directions
as herein set forth shall be performed and carried out by
the Declarant through its officers and agents.
ARTICLE XI
AMENDMENT OF BYLAWS
Except as provided in Section 2 below, these Bylaws may be
amended by the affirmative vote of the voting members having
at least sixty-seven percent (67%) of the aggregate voting
interests, cast in person or by proxy at a meeting duly held
in accordance with the provisions of the Bylaws. Such amendment
shall be executed in the name of the Association and recorded
in the Office of the Register of Deeds in the County in which
the Property is located. No such amendment shall be effective
until duly recorded as aforesaid.
The Declarant, for so long as it controls
the Board and remains a Class B member, may amend these Bylaws
without consent of the Owners.
The Board of Directors may amend these Bylaws without the
consent of the Owners:
- To correct any obvious error or inconsistency in drafting,
typing or reproduction; and
- To conform to the requirements of any law or governmental
agency having legal jurisdiction over the Property or
to qualify the Property or any Lots therein for mortgage
or improvement loans made or insured by a governmental
agency, Federal National Mortgage Association, or the
City of Durham or to comply with the requirements of law
or regulations of any corporation or agency regarding
purchase of mortgage interests in Lots by such agency.
- To increase the size of the Board of Directors.
No amendments made pursuant to this Section 2 shall be effective
until duly recorded in the Office of the Register of Deeds
of the County in which the Property is located.
Declarant shall have the right to amend
these Bylaws at any time prior to recording the sale of the
first Lot to an Owner by filing an amendment in the Office
of the Register of Deeds of the County in which the Property
is located with a certificate certifying the fact that no
sale has previously occurred.
ARTICLE XII
CONFLICTS
In the case of any conflict between Articles of Incorporation
and these Bylaws, these Articles shall control; and in the
case of any conflict between the Declaration and these Bylaws,
the Declaration shall control.
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