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Bylaws
Declaration of Covenants, Conditions and
Restrictions
for Valley Crest Townhomes
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THIS DECLARATION, made on the date hereinafter
set forth by WILLWOOD, LLC, a North Carolina Limited Liability
Company, with its principal office located at 2600-C Carver
Street, Durham, Durham County, North Carolina (hereinafter
referred to as “Declarant.”)
WITNESSETH:
WHEREAS, Declarant is the owner of certain property in the
County of Durham, State of North Carolina, which is more particularly
described in Exhibit “A” attached
hereto and incorporated herein by reference (hereinafter referred
to as the “Property”); and,
WHEREAS, Declarant now desires to develop a townhouse development
in accordance with the Declaration of Covenants, Conditions
and Restrictions hereinafter set forth.
NOW, THEREFORE, Declarant hereby declares that all of the
Property described above shall be held, sold, and conveyed
subject to the following easements, restrictions, covenants
and conditions, which are for the purpose of protecting the
value and desirability of, and which shall run with, title
or interest in the described Property or any part thereof,
and be binding on all parties having any right, title or interest
in the described Property or any part thereof, their heirs,
successors and assigns, and shall inure to the benefit of
each owner thereof.
ARTICLE I
DEFINITIONS
"Association"
shall mean and refer to the Valley Crest Townhome Owners Association,
Inc., a North Carolina non-profit corporation its successors
and assigns.
"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.
"Property"
shall mean and refer to that certain real property hereinbefore
described, and such additions thereto as may be hereafter
brought within the jurisdiction 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.
"Lot"
shall mean and refer to any plot of land shown upon the Plat
of the Property designated for separate ownership of occupancy
by a Lot Owner.
"Declarant"
shall mean and refer to Willwood, LLC, its successors and
assigns to whom the rights of the Declarant hereunder are
expressly transferred, in whole or in part.
“Member”
shall mean and refer to every person or entity who holds membership
in the Association.
“Living
Unit” shall mean and refer to any Lot on which a dwelling
unit has been fully constructed and made ready for occupancy
as a residence, including, without limitation, completion
of the final floor covering, interior paint and wallpaper
and all appliances and for which a Certificate of Occupancy
has been issued.
“Limited
Common Element” shall mean those portions of the Common
Elements that serve only a single Lot or a limited number
of Lots fewer than all the Lots, and which may include, but
specifically is not limited to, driveways, walkways, parking
areas or areas serving only specified Lots, and such other
similar areas as may be designated by a plat map of the Property.
“Person”
shall mean and refer to any individual, corporation, partnership,
association, trustee or other legal entity.
“Building”
shall mean and refer to a structure containing townhomes,
constructed or erected on the Property.
“Board”
or “Board of Directors” shall mean those persons
elected or appointed and acting collectively as the Board
of Directors of the Association.
“Common
Expenses” shall mean and include:
- All sums lawfully assessed by the Association against
its Members;
- Expenses for maintenance of the townhomes as provided
in this Declaration;
- Expenses of administration, maintenance, repair or replacement
of the Common Elements and Limited Common Elements;
- Expenses declared to be common expenses by the provisions
of this Declaration or the Bylaws;
- Hazard, liability or such other insurance premiums as
the Declaration or the Bylaws may require the Association
to purchase; or as the Association may deem appropriate
to purchase;
- Ad valorem taxes and public assessments charges lawfully
levied against Common Elements;
- The expense of the maintenance of private drainage and
utility easements and facilities located therein which are
within the boundaries of the Property and serve both the
Property and lands adjacent thereto;
- Expenses agreed by the members to be Common Expenses
of the Association; and
- All charges for utilities used in connection with the
maintenance of the Common Elements.
“Articles
of Incorporation” or “Articles” shall mean
the Articles of Incorporation of Valley Crest Townhome Owners
Association, Inc., the original of which was filed in the
office of the North Carolina Secretary of State on the 14th
day of April, 2005, and any and all subsequent amendments
thereto.
“Bylaws”
shall mean the Bylaws of Valley Crest Townhome Owners Association,
Inc., which shall be recorded immediately following the recordation
of this Declaration in office of the Durham County Register
of Deeds, and any and all subsequent amendments thereto.
“Plat”
shall mean that certain Plat recorded in Book _____ Page _____,
Durham County Registry.
ARTICLE II
PROPERTY RIGHTS
. Every owner shall have a right and easement
of enjoyment in and to the Common Elements together with and
including the right of access, ingress and egress, on and
over the drives, walkways and parking areas of the Common
Elements, all of which shall be appurtenant to and shall pass
with the title to every Lot, in accordance with the purpose
for which it is intended and without violating the lawful
rights of the other Owners, subject to the following provisions:
- The right of the Association to suspend the voting rights
and the right of use of the recreational or other Common
Element facilities (except rights of access to Lots), by
an Owner for any period during which any assessment against
his Lot remains unpaid and for a period not to exceed sixty
(60) days for any infraction of its published rules and
regulations;
- The right of the Association to dedicate, sell, lease
or transfer all or any part of the Common Element, or any
interest therein, to any public agency, authority, or utility,
or to any other person for such purposes and subject to
such conditions as may be agreed upon by the Members. No
such dedication or transfer shall be effective unless voted
upon and approved by eighty percent (80%) of each class
of members in the Association on a written instrument. On
such instrument, the Secretary of the Association shall
certify that eighty percent (80%) of each class or members
have approved the dedication, sale, lease or transfer and
that certificate may be relied upon by any third party without
inquiry and shall be conclusive as to any grantee, its successors
or assigns; provided, however, conveyances for general utility
purposes as specified herein may be made by the Association
without the consent of the Members;
- The right of the individual members to the use of parking
spaces provided in this Article;
- The right of the Association, in accordance with this
Declaration and its Articles of Incorporation and Bylaws,
to borrow money for the purpose of improving the Common
Element and facilities;
- The right of the Association to limit the number of guests
of members; and
- The right of the Association, in accordance with this
Declaration and its Articles of Incorporation or Bylaws,
to impose rules and regulations for the use and enjoyment
of the Common Elements and improvements thereon, which rules
and regulations may further restrict the use of the Common
Elements and to create Limited Common Elements:
Any owner may delegate, in accordance with the Bylaws, his
right of enjoyment to the Common Element to the members of
his family, his tenants, or contract purchasers who reside
on the Property.
Parking of any and all vehicles on the Property shall be subject
to the Rules and Regulations of the Association, provided
that the Owner(s) of each Lot shall have the right to the
use, for at least one (1) automobile, of at least one (1)
automobile parking space.
The Declarant hereby covenants for itself,
its successors and assigns, that it will convey fee simple
title to the Common Elements located on the recorded Plat
for this development of the Property to the Association, free
and clear of all encumbrances and liens, prior to the conveyance
of the first Living Unit on the recorded Plat for the development,
except encumbrances of utility, storm drainage, service, access
and other similar service or utility easements.
ARTICLE III
MEMBERSHIP AND VOTING RIGHTS
Every record
Owner of a Lot which is subject to assessment shall be a member
of the Association. Membership shall be appurtenant to and
may not be separated from ownership of any Lot which is subject
to assessment.
The Association
shall have two (2) classes of voting membership:
Class A members
shall be all the Owners, with the exception of the Declarant,
and shall be entitled to one vote for each Lot owned. When
more than one person holds an interest in any Lot, all such
persons shall be Members; however, the vote for such Lot
shall be exercised as they among themselves determine, or
as set forth in the Bylaws, but in no event shall more than
one (1) vote be cast with respect to any Lot. Fractional
voting is prohibited.
Class B members
shall be the Declarant, and the Class B Members shall be
entitled to four (4) votes for each Lot in which the Class
B Member has an ownership interest provided that the Class
B membership shall cease and be converted to Class A membership
on the happening of the following events whichever shall
first occur:
- Ninety percent (90%) of the 38 Lots that have been proposed
for development and which will be platted are deeded from
Declarant to Lot Owners other
than Declarant; provided, however, that the Class B membership
shall be reinstated with all rights privileges and responsibilities,
if prior to the termination date in subsection (b) hereafter,
but after a conversion of the Class B membership to Class
A membership as herein provided, it being hereby stipulated
that the conversion and reconversion shall occur automatically
as often as the foregoing facts shall occur; or
- On December 31, 2015.
After termination of the Class B membership, if the Declarant
still owns Lots, said Declarant shall for all purposes be
deemed a Lot Owner and shall be entitled to the same rights
and privileges of Class A Members.
The right of
any member to vote may be suspended by the Board of Directors
for just cause pursuant to its rules and regulations and the
Articles and Bylaws of the Association and according to the
provisions of Article II Section 1(a) herein.
ARTICLE IV
COVENANT FOR MAINTENANCE ASSESSMENTS
The Declarant,
for each Lot owned within the Property, hereby covenants,
and each Owner of any Lot owned 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 which are Common Expenses,
which must be collected either monthly, quarterly, or annually
at the election of the Association, and (2) special assessments
for extraordinary maintenance and capital improvements, (3)
special assessments for purchase and reconstruction of townhomes
as hereinafter defined. The annual and special assessments
together with interest and costs and reasonable attorney’s
fees for collection, shall be a charge on the land and shall
be a continuing lien upon the Lot against which each assessment
is made. Each such assessment, together with interest, costs
and reasonable attorney’s fees, shall also be the personal
obligation of the person who was the Owner of such Lot at
the time when the assessment became due. The personal obligation
for the delinquent assessments shall not pass to a Lot Owner’s
successors in title unless expressly assumed by them.
Notwithstanding any provision herein to the contrary, the
assessment for each Lot which is not a Living Unit shall be
twenty-five percent of the assessment of a Living Unit.
The Association shall also have the authority, to establish,
fix and levy a special assessment on any Lot or Living Unit
to secure the liability of the Owner thereof, by way of a
properly filed lien, to the Association arising from breach
by such owner of any of the provisions of this Declaration
which breach shall require the expenditure of time and money,
or both, by the Association for repair or remedy.
Each Owner covenants for himself, his heirs, successors
and assigns to pay each assessment levied by the Association
on his Lot within ten (10) days of the due date as established
by the Board, and further covenants that if said assessment
shall be in default and become a lien upon said Owner’s
Lot as provided herein then such lien shall continue to be
enforceable until fully paid.
The assessments levied by the Association shall be used exclusively
to promote the recreation, health, safety and welfare of the
residents in the Property, and in particular, but not limited
to, for the acquisition, improvement and maintenance of Property,
services and facilities, for the exterior maintenance of the
Buildings and for the use and enjoyment of the Common Elements,
including, but not limited to, the cost of repairs, replacements
and additions; the cost of labor, equipment, materials, management
and supervision; the payment of taxes and public assessments
assessed against the Common Elements; the procurement and
maintenance of insurance in accordance with the Bylaws or
as deemed appropriate by the Board; the employment of counsel,
accountants and other professionals for the Association when
necessary; and, such other needs as may arise.
Out of the annual assessment, the Board shall
create and maintain a reserve fund for the periodic maintenance,
repair and replacement of improvements to the Common Elements
and any Limited Common Elements which the Association may
be obligated to maintain.
The Declarant has entered into that certain Buffer Easement
with Chowings Place Townhome Association, Inc., dated as of
August 18, 2003 and recorded in Book 4104 Page 191-207 Durham
County Registry. As per the terms of said Buffer Easement,
the Association shall at all times maintain in its reserve
account three thousand dollars ($3,000) for the purpose of
fulfilling its obligations pursuant to the above referenced
Buffer Agreement.
-
Until January 1st of the year immediately following the
conveyance of the first Lot to an Owner, other than the
Declarant, the maximum annual assessment shall not exceed
One Thousand Five Hundred Dollars ($1,500.00) per Lot.
The Declarant shall pay no assessment for Lots developed
and owned by it.
-
From and after January 1st of the year immediately following
the conveyance of the first Lot to an Owner, the maximum
annual assessment effective for any year may be increased
by the Board of Directors, without a vote of the membership,
by a percentage which may not exceed (10%) over the annual
assessment for the prior year.
-
From and after January 1st of the year immediately following
the conveyance of the first Lot to an Owner, the maximum
annual assessment may be increased by a percentage greater
than permitted by this Article by an affirmative vote
of two-thirds (2/3) of each class of members who are voting
in person or by proxy at a meeting duly called for such
purpose.
- In establishing the annual assessment
for any assessment year, the Board of Directors shall
consider all current costs and expenses of the Association,
any accrued debts and reserves for future needs.
In addition to the annual
assessments authorized above, the Association may levy, in
any assessment year, a special assessment for the purpose
of defraying, in whole or in part, the cost of any construction,
reconstruction, restoration, repair or replacement of a capital
improvement upon the Common Element, any extraordinary maintenance,
and in connection with exterior maintenance, including fixtures
and personal property and any property for which the Association
is responsible, provided that any such assessment shall be
approved by the assent of two-thirds (2/3) of the votes of
each class of members which are voting in person or by proxy
at a meeting duly called for this purpose.
Written
notice of any meeting called for the purpose of taking any
action authorized under Section 4 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 ten
percent (10%) 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
one-half (1/2) of the required quorum at the preceding meeting,
and such quorum requirement shall continue to decrease at
each subsequent meeting until a quorum is present. No such
subsequent meeting shall be held more than sixty (60) days
following the preceding meeting.
Both annual and special assessments must be fixed at a uniform
rate for all Lots and Living Units with the exception of assessments
levied on limited common elements that only benefit certain
lots and may be collected on a monthly basis or annual basis,
but in no event shall it be collected less frequently than
annually, as determined by the Board of Directors of the Association;
provided, however, that the Declarant shall pay no assessment
for Lots or Living Units developed and owned by it. Further,
if any common expense is caused by the negligence or misconduct
of any Lot Owner or occupant, the Association may assess that
expense exclusively against that Lot Owner or occupant’s
lot.
The annual assessments
provided herein shall commence as to all Lots identified on
a duly recorded Plat on the first day of the month following
the conveyance of the Common Elements identified on any such
plat to the Association. The first annual assessment shall
be prorated according to the number of months remaining in
the calendar year. The Board of Directors shall fix the amount
of the annual assessment against each Lot at least thirty
(30) days in advance of the annual assessment period. Written
notice of the annual assessment shall be sent to every Lot
Owner subject thereto. The due dates shall be established
by the Board of Directors. The Association shall, upon demand,
and for a reasonable charge, furnish a certificate signed
by an officer of the Association setting forth whether the
assessments on a specific 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
its issuance.
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.
The lien of the assessments
provided for herein shall be subordinate to the lien of any
institutional first mortgage and ad valorem taxes on said
Lot. Sale or transfer of any Lot shall not affect the assessment
lien. However, the sale or transfer of any Lot pursuant to
such mortgage or tax foreclosure or any proceeding in lieu
thereof, shall extinguish the lien of such assessments as
to payments which became due prior to such sale or transfer.
No sale or transfer shall relieve such Lot from liability
for any assessments thereafter becoming due or from the lien
thereof.
In an action brought by
the Board of Directors to foreclose on a Lot because of unpaid
Common Expenses, the Board, acting on behalf of all Lot Owners,
or on behalf of any one or more individual Lot Owners, if
so interested, shall have the power to purchase such Lot at
the foreclosure sale and to acquire, hold, lease, mortgage
convey or otherwise deal with the same, subject, however to
applicable restrictions of record. A suit to recover a money
judgment for unpaid Common Expenses may be maintainable without
foreclosing or waiving the lien securing the same.
At the time of closing of the sale of each Lot, a sum equal
to two (2) months assessment for each Lot shall be collected
from the purchaser and transferred to the Association to be
held as a working capital fund. The purpose of said fund is
to ensure that the Association Board will have adequate cash
available to meet unforeseen expenses, and to acquire additional
equipment or services deemed necessary or desirable. Amounts
paid into the fund shall not be considered advance payment
of regular assessments and are in addition to regular assessments.
ARTICLE V
ARCHITECTURAL CONTROL
No site preparation or initial construction, erection or
installation of any improvements including, but not limited
to, building, fences, signage, walls, screens, plantings or
other structure shall be commenced, erected or maintained
upon the Property, or other structure shall be commenced,
erected or maintained upon the Property, nor shall any exterior
addition to or change or alteration thereto be made by any
Lot Owner other than the Declarant, so long as Declarant is
Class B Member, until the plans and specifications showing
the nature, kind, shape, height, materials, color and location
of the same shall have been submitted to and approved in writing
as to the harmony of external design and location in relation
to surrounding structures and topography by the reasonable
discretion of the Board of Directors of the Association, or
by the reasonable discretion of the architectural committee
composed of three (3) or more representatives appointed by
the Board. In the event said Board, or its designated committee,
fails to approve or disapprove such design and location within
thirty (30) days after said plans and specifications have
been submitted to it, approval will not be required and this
Article will be deemed to have been fully complied with, provided
that plans and specifications that contain inaccurate or missing
data or information when submitted shall not be deemed to
be approved notwithstanding the foregoing.
The Association shall have the right, at its election, but
not required, to enter upon any of the Property during site
preparation or construction, erection or installation of improvements
to inspect the work being undertaken and to determine that
such work is being performed in conformity with the approved
plans and specifications and in a good and workman-like manner,
utilizing approved methods and good quality materials.
ARTICLE VI
INSURANCE
(a) Commencing not later than the
time of the first conveyance of a lot to a person other than
a Declarant, the Association shall maintain, to the extent
reasonably available:
- Property insurance on the Common Elements 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 eighty percent (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, and
- 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) If the insurance described in subsection (a) of this
section is not reasonably available, the Association promptly
shall cause notice of that fact to be hand-delivered or sent
prepaid by United States mail to all Lot Owners. The Declaration
may require the Association to carry any other insurance,
and the Association in any event may carry any other insurance
it deems appropriate to protect the Association or the Lot
Owners.
(c) Insurance policies carried pursuant to subsection (a)
of this section shall provide that:
- Each Lot Owner is an insured person under the policy
to the extent of the Lot Owner’s insurable interest,
- The insurer waives its right to subrogation under the
policy against any Lot Owner or member of the Lot Owner’s
household;
- No act or omission by any Lot Owner, unless acting
within the scope of the owner's authority on behalf of
the Association, will preclude recovery under the policy;
and
- If, at the time of a loss under the policy, there is
other insurance in the name of a Lot Owner covering the
same risk covered by the policy, the Association's policy
provides primary insurance.
(d) Any loss covered by the property policy under subdivision
(a)(1) of 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 mortgagee 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. Subject to
the provisions of subsection (h) of this section, 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.
(e) An insurance policy issued to the Association does not
prevent a Lot Owner from obtaining insurance for the Lot Owner's
own benefit.
(f) An insurer that has issued an insurance policy under
this section shall issue certificates or memoranda of insurance
to the Association and, upon written request, to any Lot 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 Lot 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.
(g) Any portion of the Property for which insurance is required
under subdivision (a)(1) of this section which is damaged
or destroyed shall be repaired or replaced promptly by the
Association unless (i) the Association is terminated, (ii)
repair or replacement would be illegal under any State or
local health or safety statute or ordinance, or (iii) the
Lot Owners decide not to rebuild by an eighty percent (80%)
vote, including one hundred percent (100%) approval of owners
assigned to the limited common elements 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 Property
is not repaired or replaced, (i) the insurance proceeds attributable
to the damaged Common Elements shall be used to restore the
damaged area to a condition compatible with the remainder
of the planned community, (ii) the insurance proceeds attributable
to limited Common Elements which are not rebuilt shall be
distributed to the owners of the lots to which those Limited
Common Elements were allocated, or to lienholders, as their
interests may appear, and (iii) the remainder of the proceeds
shall be distributed to all the Lot Owners or lienholders,
as their interests may appear, in proportion to the common
expense liabilities of all the lots. Notwithstanding the provisions
of this subsection, G.S. 47F-2-118 (termination of the planned
community) governs the distribution of insurance proceeds
if the planned community is terminated.
The Association shall not provide
nor purchase insurance for the repair or replacement of any
Building. It shall be, and hereby is, the responsibility of
each Lot Owner to procure and obtain the following types of
insurance coverage:
- Property insurance on the Lot Owner’s individual
Lot 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 eighty percent (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, and
- 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 Lot.
ARTICLE VII
PARTY WALLS
Each wall which is built as a part of the
original construction of the homes upon the Property and placed
on the dividing line between Lots and all reconstruction or
extensions of such walls shall constitute a party wall, and,
to the extent not inconsistent with the provisions of this
Article, the general rules of law regarding party walls, lateral
support in below ground construction and or liability for
property damaged due to negligence or willful acts or omissions
shall apply thereto.
The cost of reasonable repair and maintenance
of a party wall shall be shared by the Owners who make use
of the wall in proportion to such use.
If a party wall is destroyed or
damaged by fire or other casualty, any Owner who has used
the wall may restore it, and if other Owners thereafter make
use of the wall, they shall contribute to the cost of restoration
thereof proportionate to such use without prejudice, subject,
however, to the right of any such Owners to call for a larger
contribution from the others under any rule of law regarding
liability for negligence or willful acts or omissions.
Notwithstanding any other provision of this Article, an Owner
who by his negligent or willful act or omission causes the
party wall to be exposed to the elements shall bear the whole
cost of furnishing the necessary protection against such elements.
The right of any Owner to contribution
from any other Owner under this Article shall be appurtenant
to the land and shall pass to such Owner's successor in title.
If any Owner desires to sell his Property, he may, in order
to assure a prospective purchaser that no adjoining Owner
has right of contribution as provided in this Article, request
of the adjoining Owner a certificate that no contribution
exists, whereupon it shall be the duty of each adjoining Owner
to make such certification immediately upon request without
charge; provided, however, that where the adjoining Lot Owner
claims a right of contribution, the certification shall contain
a recital of the amount claimed.
In the event of any dispute arising concerning a party wall,
or under the provisions of this Article, such dispute shall
be settled at binding arbitration as follows: each party shall
choose one (1) arbitrator, and such arbitrators shall choose
one (1) additional arbitrator, and the decision shall be by
majority of all the arbitrators. The rules established by
the American Arbitration Association shall govern any arbitration
pursuant to this Section 7.
ARTICLE VIII
EXTERIOR MAINTENANCE
In addition to maintenance upon the Common Element,
the Association shall provide exterior maintenance upon each
Lot and Living Unit which is subject to assessment hereunder
as follows: paint, repair, replacement and care of roofs,
gutters, downspouts, exterior Building surfaces (except for
exterior window and door repair and replacement), trees, shrubs,
grass, walks, those certain fences installed by Declarant
or the Association and other exterior improvements made by
the Declarant or the Association prior to the transfer of
title to the Owner, (and further specifically excluding any
maintenance on the Heating, Ventilation, and/or Cooling systems
(“HVAC”) regardless of where such HVAC equipment
is located on the Property). It shall be the sole and exclusive
responsibility of each Lot Owner to maintain and repair the
HVAC system that services the Lot Owner’s Lot. Such
exterior maintenance shall not include glass surfaces, areas
fenced for patio purposes, awnings, or other exterior appurtenances
added by an Owner. Further, the Owner of any Lot may at his
election plant trees, shrubs, flowers and grass in his rear
yard and may also maintain portions or all of his rear yard
provided that such maintenance does not hinder the Association
in performing its maintenance of the exterior of the house
and the remaining yard spaces. The Association shall perform
no lawn maintenance to the rear yard of any Lot except grass
cutting. A Lot Owner may elect to erect a privacy fence, with
the approval of the Architectural Control as set forth in
Article V of this Declaration. The installation of such a
fence at the rear yard of any Lot shall relieve the Association
from its responsibility to maintain the rear yard of that
Lot. If no such fence is installed by the Lot Owner then the
Association will cut the grass in the rear yard of the Lot.
No such maintenance by a Lot Owner or his agents, nor the
construction of a fence in the rear yard by a Lot Owner, shall
reduce the assessment payable by a Lot Owner to the Association.
If, in the opinion of the Association, any such Lot Owner
fails to maintain his rear yard in a neat and orderly manner,
the Association may undertake any required maintenance and
add the cost thereof to the assessment against such Owner’s
Lot. The Owner shall not plant any vegetation in the front
yard except with the prior written approval of the Association.
In the event
that the need for maintenance, repair or replacement is caused
through the willful or negligent act or omission of the Owner,
his family, guests, invitees, tenants, agents or contractors,
or is caused by fire, lightning, windstorms, hail, ice storms,
explosion, riot, riot attending a strike, civil commotion,
aircrafts, vehicles or smoke as the foregoing are defined
and explained in North Carolina Standard Fire and Extended
Coverage insurance policies, 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. The Association
is hereby granted an easement right of access to go upon any
Lot for performance of repairs or maintenance, the responsibility
of which is the Association’s hereunder. If an owner
installs a fence or otherwise prevents access for maintenance
of his or her Lot(s), the Association shall have no obligation
to maintain such Lot.
In order to
enable the Association to accomplish the foregoing, there
is hereby reserved to the Association, its agents, employees
or contractors, the right to unobstructed access over and
upon each Lot at all reasonable times for inspection and to
perform maintenance as provided in this Article.
ARTICLE IX
USE RESTRICTIONS
The Board of Directors of the Association shall have the power
to formulate, amend, publish and enforce reasonable rules
and regulations concerning the use and enjoyment of all exterior
yard space of each Lot and the Common Elements. Such rules
and regulations may provide for the imposition of fines or
penalties for the violation thereof, or for the violation
of any of the covenants or conditions contained in this Declaration,
following a hearing held pursuant to Section 47F-3-107.1 of
the North Carolina General Statutes by the Association Board,
and fine not to exceed the statutory limits then in effect
(currently) $150 may be imposed for each violation.
No portion of the Property (except for temporary offices of
the Declarant and/or any model used by the Declarant) shall
be used except for single family residential purposes and
for purposes incidental or accessory thereto.
No obnoxious or offensive activity shall be carried on upon
the Property, nor shall anything be done which may be or may
become a nuisance or annoyance on the Property.
No
animals, livestock or poultry of any kind shall be kept or
maintained on any Lot or in any dwelling except that dogs,
cats or other household pets may be kept and maintained provided
that they are not kept or maintained for commercial purposes
and are controlled in accordance with applicable governmental
ordinances and are not a nuisance or danger to other Owners.
All persons owning pets are required to keep all Lots and
Common Elements clear of waste from their pets at all times.
Any person walking a pet within the Property shall be responsible
for the immediate removal of their pet’s waste material.
Minimum square footage requirements for dwellings and/or Lots
shall be set by Declarant. No lot shall be resubdivided in
such a manner that will result in there being more than the
number of Lots shown on the applicable recorded plat.
No structure of a temporary character, trailer, basement,
tent, shack, garage, barn or other outbuilding, shall be used
on any Lot at any time as a residence, or otherwise, either
temporarily or permanently.
Nothing shall be kept, and no activity shall be conducted,
on the Property which will increase the rate of insurance,
for the Property or the contents thereof. No Owner shall do
or keep anything, nor cause or allow anything to be done or
kept, in his townhome or on the Common Elements which will
result in the cancellation of insurance on any portion of
the Property or the contents thereof, or which will be in
violation of any law, ordinance or regulation. No waste shall
be committed on any portion of the Common Elements. Any increase
in insurance premium attributed to a Lot Owner shall be charged
to that Lot Owner.
No immoral, improper, offensive or unlawful use shall be made
of the Property, or any part thereof, and all valid laws,
ordinances and regulations of all governmental agencies having
jurisdiction thereof shall be observed. All laws, order, rules,
regulations or requirements of any governmental agency having
jurisdiction thereof, relating to any portion of the Property,
shall be complied with.
No
boats, trailers, campers, motor homes, commercial trucks or
tractors shall be parked on the Property or on any right of
way of any street adjoining the Property by any Lot Owner,
its family members, tenants or contract purchasers, except
as may be permitted by the Rules and Regulations to be parked
in a closed garage.
No
Owner shall display, or cause to allow to be displayed, to
public view and sign, placard, poster, billboard or identifying
name or number upon any Building, or any portion of the Common
Elements, except as allowed by the Association pursuant to
its Bylaws or regulations or as required by local governmental
authority, provided, however that the Declarant and any mortgagee
who may become the Owner of any Lot, or their respective agents
may place “For Sale” or “For Rent”
signs on any unsold or unoccupied townhome. Provided however,
that the Declarant may maintain a sales office and may erect
such signs as the Declarant deems appropriate as aids to such
development and marketing, provided that such signs do not
violate and applicable law.
No person shall undertake, cause or allow any alteration of
structures in or upon any portion of the Common Elements except
at the directions or with the express written consent of the
Association.
The Common Elements shall be used only for the
purposes for which they are intended and reasonably suited
and which are incident to the use and occupancy of the townhomes,
subject to any rules or regulations that may be adopted by
the Association pursuant to its Bylaws.
No television reception antennas shall
be erected on a Building, or any Lot, other than eighteen-inch
digital satellite dishes. In no event shall freestanding transmission
or receiving towers or dishes in excess of eighteen inches
be permitted on any Building, or any Lot. The Association
may supply cablevision and piped-in music, and the cost of
these may be included in the annual or special assessments.
ARTICLE X
EASEMENTS
All of the Property, including Lots and Common Areas, shall
be subject to such easements for driveways, walkways, parking
areas, water lines, sanitary sewers, storm drainage facilities,
gas lines, telephone and electric power lines and other public
utilities as shall be established by the Declarant or by his
predecessors in title, prior to the subjecting of the Property
to this Declaration; and the Association shall have the power
and authority to grant and establish upon, over, under and
across the Common Elements conveyed to it, such further easements
as are requisite for the convenient use and enjoyment of the
Property without approval of the membership.
Each Owner is hereby declared to have an easement, and the
same is hereby granted by the Declarant, over all adjoining
Lots for the purpose of accommodating any encroachment due
to engineering errors, errors in original construction, settlement
or shifting of buildings or any other cause. There shall be
valid easements for the maintenance of said encroachment;
provided, however, that in no event shall a valid easement
for encroachment be created in favor on an Owner or Owners
if said encroachment occurred due to the willful misconduct
of said Owner or Owners. In the event a structure on any Lot
is partially or totally destroyed, and then repaired or rebuilt,
the Owners of each Lot agree that minor encroachments over
adjoining Lots shall be permitted and that there shall be
valid easements for the maintenance of said encroachments
so long as they shall exist.
In the event that any Building on a Lot shall encroach upon
any Common Elements or upon any other Lot for any reason not
caused by the purposeful or negligent act of the Owner or
agents of such Owner, then an easement appurtenant to such
Lot shall exist for the continuance and maintenance of such
encroachment upon the Common Elements or other Lot for so
long as such encroachment shall naturally exist; and, in the
event that any portion of the Common Elements shall encroach
upon any Lot, then an easement shall exist for the continuation
and maintenance of such encroachment of the Common Elements
onto any such Lot for so long as such encroachment shall naturally
exist.
Each of the easements herein above referred to shall be deemed
to be established upon the recordation of this Declaration
and shall henceforth be deemed to be covenants running with
the land for the use and benefit of the Lots, and the Common
Elements, as the case may be, superior to all other encumbrances
which may hereafter be applied against or in favor of the
Property or any portion thereof.
If any encroachment shall occur subsequent to subjecting the
Property to this Declaration as a result of settling or shifting
of any Building or as a result of any permissible repair,
construction, reconstruction or alteration, there is hereby
created and shall be a valid easement for such encroachment
and for the maintenance of the same. Every Lot shall be subject
to an easement for entry and encroachment by the Declarant
for a period not to exceed eighteen (18) months following
conveyance of a Lot to an Owner for the purpose of correcting
any problems that may arise regarding grading or drainage.
The Declarant, upon making entry for such purpose, shall restore
the affected Lot or Lots to as near the original condition
as practicable.
Every Lot and townhome shall be subject to an easement for
entry by the Association for the purpose of correcting, repairing,
or alleviating any emergency condition which arises upon any
Lot or within any townhome and that endangers any Building
or portion of the Common Elements.
ARTICLE XI
GENERAL PROVISIONS
The Association, or any Owner, shall have the right to enforce,
by any proceeding at law or in equity, all restrictions, covenants,
conditions, reservations, liens and charges now or hereafter
imposed by the provisions of this Declaration. Failure by
the Association of by any owner to enforce any covenant or
restriction herein contained shall in no event be deemed a
waiver of the right to do so thereafter.
Invalidation of anyone of these covenants or restrictions
by judgment or court order shall in no wise affect any other
provisions which shall remain in full force and effect.
The covenants and restrictions of this Declaration shall run
with and bind the land, for a term of twenty (20) years from
the date this Declaration is recorded, after which time these
declarations shall be automatically extended for successive
periods of ten (10) years. This Declaration may be amended
by an instrument signed by Lot Owners to which at least sixty-seven
percent (67%) of the votes in the Association are allocated;
provided that (1) prior to the sale of the first Lot, this
Declaration may be amended by the Declarant without consent
of the Members; and (2) the Board may amend this Declaration
without the consent of the Members to correct any obvious
error or inconsistency in drafting, typing or reproduction,
to allow for the annexation of additional property, for the
addition of further special Declarant rights, or for other
reasons listed is Section 4 below. All amendments shall specify
the provisions herein under which it is amended and shall
certify the compliance with the amendment provision herein.
No amendment shall be effective until recorded in the Office
of the Register of Deeds for Durham County, North Carolina.
The Declarant,
so long as it shall retain control of the Association, without
the consent or approval of any other Owner, shall have the
right to amend this Declaration 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 and
improvements thereon for mortgage or improvement loans made,
insured or guaranteed by a governmental agency or to comply
with the requirements of law or regulations of any corporation
or agency belonging to, sponsored by, or under the substantial
control of the United States Government or the State of North
Carolina, regarding purchase or sale in such Lots and improvements
or mortgage interests therein, as well as any other law or
regulation relating to the control of property, including,
without limitation, ecological controls, construction standard,
aesthetics and matters affecting the public health, safety
and general welfare. A letter from an official of any such
corporation or agency, including, without limitations, the
Veterans Administration, U.S. Department of Housing and Urban
Development, the Federal Home Loan Mortgage Corporation, Government
National Mortgage Corporation of the Federal National Mortgage
Association or Durham City or County, requesting or suggesting
an amendment necessary to comply with the requirements of
such corporation or agency shall be sufficient evidence of
approval of such corporation or agency, provided that the
changes made substantially conform to such request or suggestion.
No amendment shall be effective until recorded in the Office
of the Register of Deeds for Durham County, North Carolina.
The Declarant, for so long as it
shall retain control of the Association, and thereafter, the
Board of Directors may amend this Declaration as shall be
necessary, in its opinion, and without the consent of any
Owner to qualify the Association or the Property, or any portion
thereof, for tax exempt status. Such amendment shall be effective
when recorded in the Office of the Register of Deeds for Durham
County, North Carolina.
Declarant may enter into a contract
with a Management company manager for the purposes of providing
all elements of the operation, care, supervision, maintenance
and management of the Property. However, no such contract
shall be binding upon the Association except through express
adoption or ratification of the terms and conditions of such
contract. Any contract or lease entered into by Declarant
or by the Association while Declarant is in control thereof
shall contain a provision allowing the Association to terminate
such contract without justification or penalty after transfer
of management by Declarant to the Association.
In no case shall the City of Durham or the County of Durham
be responsible for failing to provide any emergency or regular
fire, police or other public service to such development for
their occupants when such failure is due to the lack of access
to such areas due to inadequate design or construction, blocking
of access routes, or any other factor within the control of
the Declarant, Association or Lot Owners and their occupants.
(See
the PDF for the signature page.)
EXHIBIT
A
BEGINNING at an existing iron pin in the southern property
line of South Roxboro Street at the Northwest corner of the
property of Chownings Place Townhome Association, Plat Book
136 at Page 215, and running thence from said point of BEGINNING
South 38E 40 minutes 52 seconds East 460.58' to an existing
monument; thence South 29E 45 minutes 28 seconds West 118.19'
to an existing monument in the property line of DNP Realty;
thence along and with the property line of DNP Realty South
84E 24 minutes 15 seconds West 459.88' to an existing iron
pin at the Northeast corner of the property of Spring Harbor;
thence along with the northern property line of Spring Harbor,
Plat Book 116 at Page 113; thence North 60E 03 minutes 51
seconds West 427.77' to an existing iron pin in the southern
property line of South Roxboro Street, which said pin has
North Carolina grid coordinates N (Y) = 792,025.23; E (X)
= 2,013,581.73 and running thence along with the southern
property line of South Roxboro Street along a curve having
a radius of 1,098.16', a chord bearing of north 60E 13 minutes
07 seconds East, a distance of 474.04' to an iron pin set;
and continuing along and with the southern property line of
South Roxboro Street north 72E 35 minutes 06 seconds east
200.12' to the point and place of BEGINNING and containing
6.2595 acres as shown on that plat entitled “_____________________”
dated ______________ by Robert W. Young, PLS recorded in Plat
Book _____ at Page _____ of the Durham County Registry to
which reference is hereby made for more particular description
of same.
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