THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR CAMELOT VILLAGE (as may be amended or supplemented as set forth herein, "Declaration") is made this 6th day of June, 2008, by Treasure Land Development Company, LLC, whose address is 2717 Hampshire Road, Cleveland Heights, Ohio 44106-2569 (the "Declarant").
A. Declarant is the owner and developer of certain real estate in Wake County, North Carolina, and more particularly described on Exhibit A attached hereto and made a part hereof; and
B. Declarant is developing the Property known as "Camelot Village" by subdividing it into "Lots" that are to be used for residential purposes as well as by creating common real estate and improvements that are to be owned by a homeowners association to which the Owner of a Lot must belong and pay lien-supported Maintenance assessments; and
C. Amended 8/8/2017
At the time of the conveyance of a Lot to an Owner, the Declarant intends to make available the common real estate, infrastructure, and, at the end of the Development Period, The Entire Property, excluding reserved property, and Lots, and government accepted dedicated streets, if any, shall be conveyed without cost or charge to the Association (defined below). The Association shall be deemed to accept such property for ownership and for Maintenance as necessary.
THEREFORE, the Declarant hereby declares that all of the Lots and Common Areas (defined below) located within Camelot Village Phase I are held and shall be held, transferred, sold, conveyed, hypothecated or encumbered, leased, rented, used, occupied and improved, subject to the following covenants, conditions and restrictions, all of which are established and agreed upon for the purpose of enhancing and protecting the value, desirability and attractiveness of the Subdivision as a whole and of each of said Lots. All of these restrictions shall run with the land and shall be binding upon the parties having or acquiring any right, title or interest, legal ..,or equitable in and to the Property or any part or parts thereof subject to such restrictions, and shall inure to the benefit of the Declarant and every one of the Declarant's successors in title to any of the Property.
Declarant's Right to Unilaterally Amend; Pursuant to Section 47F-2-117(a) of the Planned Community Act, Declarant hereby reserves unto itself under the terms of this declaration the right during the Development Period, without further notice and without the joinder or consent of any Owner, to amend this Declaration in order to ensure development of the Property in accordance with Declarant's development plan for the Property, or for the exercise of any other development right or Special Declarant Rights as defined in Section 1.12 and "Development Rights" as defined in Section 1.15. But Declarant shall have no_right to amend any provision in Article XVI make any amendment in contravention of Article XVI sections or make any amendment in contravention to the City Code without the prior written approval of the City as set forth in Article XVI Section 4 herein.
ARTICLE I DEFINITIONS
Section 1.1 "Annual Organizational Board Meeting" means the annual organizational board meeting of the Board, which shall take place immediately after each Annual Meeting of the Members.
Section 1.2 "Annual Meeting" means the annual meeting of the Members held in Wake County, North Carolina, within the last quarter of each calendar year, upon proper notice, at a date, time and at a place from time to time designated by the Board. The first Annual Meeting of the Members shall be held within one (1) year from the date of incorporation on such date, as the initial Board shall determine.
Section l.3 "Articles" or "Articles of Incorporation" shall mean those articles, filed with the Secretary of State of North Carolina, incorporating Camelot Village Phase I Homeowners Association, Inc., as a nonprofit corporation under the provisions of North Carolina State law, as the same may be amended from time to time.
Section 1.4 "Assessments" means Regular Assessments, Stormwater Assessments Special Assessments, Working Capital Assessments, Individual Assessments and Fine Assessments.
Section 1.5 "Association" shall mean and refer to Camelot Village Homeowners Association, Inc., to be formed as a non-profit corporation, its successors and assigns.
Section 1.6 "Board" or "Board of Directors" shall mean and refer to the Board of Directors of the Association.
Section 1.7 "Bylaws" shall mean the Bylaws of the Association, as the same may be amended from time to time.
Section 1.8 "Constituent Documents" shall mean all of the following: this Declaration; the Articles of Incorporation and Bylaws of the Association; architectural guidelines and bulletins and rules and regulations of the Association; Annexation Declarations; and other declarations of restrictive or protective covenants applicable to the Properties; and all Sub-Association documents (with respect to those portions of the Properties subject to such Sub-Association documents), as the same may be amended, restated or supplemented from time to time.. Section
1.9 "Common Areas" shall mean all the real estate (including retention ponds, storm drainage improvements, entrance signage, streets (including any dedicated streets prior to their acceptance for public Maintenance) and all landscaping and other improvements thereon) designated by the Declarant as such, that will be deeded to or owned by the Association for the common use and enjoyment of the Owners. Common Areas shall include, but not be limited to, the Recreational Facilities and parcels designated on the Subdivision plat as "Park" (unless such parks are later dedicated to the public by a subsequent dedication plat or conveyance), "COS," "Open Space," "Common Area".
Section 1.10 "Common Expenses" Amended 8/8/2017
See also Article CVI Part A Section 1 (i) shall mean, refer to, and include all charges, costs and expenses incurred by the Association for and in connection with the administration of the Subdivision, including, without limitation thereof, operation of the Subdivision, Maintenance, repair, replacement and restoration (to the extent not covered by insurance) of the Common Area; the costs of any additions and alterations thereto; all labor, services, common utilities, materials, supplies, and equipment therefore, all liability for loss or damage arising out of or in connection with the Common Areas and their use; all premiums for hazard, liability and other insurance with respect to the Subdivision; all costs incurred in acquiring a Lot pursuant to judicial sale; and all administrative, accounting, legal, and managerial expenses. "Common Expenses" shall also include the cost of operation, Maintenance, improvement, and replacement of any Recreational Facilities, including establishing reserves therefore. “Common Expenses" shall also include all reserve funds or other funds established by the Association. “Common Expenses" shall be construed broadly..,"
A. Expenses for Maintenance of the roads, streets, any private roads, rights of way, Department of Transportation right-of-way easements as shown on any recorded plat of the subdivision and, as determined by the Association or the Board, and any amenities as provided in this Declaration;
B. Expenses of administration, Maintenance, repair, or replacement of the Common Areas including expenses of Maintenance of the fencing, signage, lighting, irrigation and landscaping located at all entrances to the Subdivision as shown on the recorded Plat, the expenses of Maintenance of any fencing, signage, lighting, irrigation and landscaping located on any of the Common Areas within the Subdivision as shown on any recorded plat of the subdivision.
C. Hazard, liability, or such other insurance premiums as the Declaration or Bylaws may require the Association to purchase; or as the Association may deem appropriate to purchase;
D. Ad valorem taxes and public assessment charges lawfully levied against Common Areas Per Covenants:
Section 1.39. “Townhome Committee" shall mean and refer to a Committee of three (3) Owners from the Townhome Section elected by the Owners of the Townhome Section. The Townhome Committee shall consist of three (3) elected Owners from the Townhome Section, to serve a one-year term of office. The Townhome Committee shall be elected annually by the Townhome Owners during the annual meeting for the Association.
In the event the Townhome Owners shall fail to elect a sufficient number of Townhome Owners to serve on the Townhome Committee, or insufficient volunteers may be found to serve on the Townhome Committee or a resignation occurs on the Townhome Committee which is unable to be filled with a Townhome Owner, then in that event, the Board of Directors for the Camelot Village Property Owners Association, Inc, shall fill all vacancies with any Owner regardless of whether said Owner is a Townhome Owner or not.
E. owed in fee by the Association;
F. The expense of the Maintenance of Stormwater Control Measures, (See definition Areas in Article XVI Part A Section 1(ac)private drainage and utility easements and facilities located therein which are within the boundaries of the Property, cross Common Properties of the Property and serve both the Property and lands adjacent thereto;
G. The expense of the Maintenance of all easements and landscaping and improvements thereon, conveyed to the Association.
H. Any other expenses determined by the Board or approved by the members to be common expenses of the Association.
Section 1.11 "Declarant" shall mean and refer to Treasure Land Development Company, LLC, its successors and assigns, to whom the rights of Declarant hereunder are expressly transferred, in whole or in part, and subject to such terms and conditions as Declarant may impose, or any owner of the Property or Lots or remainder of those resulting from the sale of the Property, Lots or the remainder thereof at foreclosure when held by Declarant or its Successor to the rights of Declarant or resulting from the transfer in lieu of foreclosure. Successors and assigns of the Declarant, for the purposes of this definition, are not purchasers of individual lots, but rather, are entities that acquire or succeed the Declarant itself, or the Declarant's entire interest in the Property, or a third party who is designated by the Declarant as a Declarant. Notwithstanding the previous statement, all of the rules, powers and restrictions of this Declaration run with the land and shall be binding upon all subsequent lot purchasers.
Section 1.12 Intentionally Omitted.
Section 1.13 "Declarant Rights, Special" are rights the Declarant specially reserves pursuant to Section 47F-1-103(28) of the Planned Community Act. The Declarant hereby reserves unto itself the right, without further notice and without the joinder or consent of any Owner, the right during the Development Period (i) to complete improvements indicated on plats and plans filed with this Declaration, (ii) to exercise any Development Right, (iii) to Maintain sales offices, management offices, signs advertising the property, and models, (iv) to use easements through the Common Areas for making improvements within the Property or within real estate which may be added to the Property, (v) to make the planned community part of a larger planned community or group of planned communities, (vi) to make the planned community subject to a master association, and (vii) to appoint or remove any Director or officer of the Association and to veto or exempt itself from any decision, resolution or act of the Board or any committee of the Board or of any officer or agent of the Association (collectively, "Special Declarant Rights").
Section 1.14 "Default" shall mean any violation or breach of, or any failure to comply with, the Restrictions, this Declaration or any other Constituent Documents.
Section 1.15 "Development Period or "Declarant Control Period "Period" means the period commencing on the date on which this Declaration is recorded in the Wake County Register of Deeds and terminating on the earlier to occur of (i) when Declarant no longer owns a Lot in the Subdivision; (ii) the date that Declarant relinquishes in writing Declarant's right to appoint Directors; or (iii) the occurrence of the date twenty (20) years from the date of recording the Declaration, renewable for an additional twenty (20) year period.
Section 1.16 "Development Rights" shall mean and refer to the right, without further notice and without the joinder or consent of any Owner, (i) to add real estate to the Property, (ii) to create Lots, Units, Common Areas or limited Common Areas, (iii) to subdivide Lots or Units it owns, (iv) to realign or change the boundaries of any Common Areas subject to the code of the city (see City Code Section 10-3073(a)(2), (v) to withdraw real estate from the Property or from the Common Areas, and subject to the approval of the City (vi) to amend this Declaration in order to ensure development of the Property in accordance with Declarant's development plan for the Property, or for the exercise of any other development right or Special Declarant Rights.
Section 1.17 "Dwelling" shall mean and refer to the individual family living unit on an individual Lot.
Section 1.18 "Fine Assessment" means the charge established by Section 5.5.2 of this Declaration.
Section 1.19 "Individual Assessment" means the charge established by Section 5.4 of this Declaration.
Section 1.20 "Lot" shall mean and refer to any parcel of land designated on the Plat upon which a Dwelling has been or is to be constructed. The Declarant has initially created Lots in the Subdivision and has the right to recombine Lots or to establish additional Lots in accordance with the terms of this Declaration.
Section 1.21 "Lot Owner" shall mean and refer to the record owner(s) of a fee simple title to any lot and improvement thereon located within the Subdivision.
Section 1.22 "Member" shall mean and refer to all those Owners who are Members of the Association as provided in Article IV below.
Section 1.23 "Owner" shall mean and refer to the record owner of a fee simple title to any lot and improvement thereon located within the Subdivision.
Section 1.24 "Plat" shall mean and refer to the record plat of the Subdivision recorded by Declarant, as the same may be amended or supplemented by Declarant from time to time.
Section 1.25 "Planned Community Act," or "the Act," shall mean and refer to the North Carolina Planned Community Act, currently codified as Chapter 47F of the North Carolina General Statutes, as the same may be amended from time to time.
Section 1.26 "Property" or "Subdivision" shall mean and refer to that certain real estate described in Exhibit A and all other real estate that may be annexed into this Declaration and the Association by the Declarant.
Section 1.27 "Recreational Facilities" Amended 8/8/2017
shall mean and refer to the property designated as "Neighborhood Recreation site open space" on the Plat recorded in Book of Maps 2009, Pages 29-36. The current boundaries of Lot 129 and Lot 208 are as reflected on that map entitled, “Recombination Survey - Camelot Village Lots 208 & 129 for Camelot Development, LLC" and recorded at Book of Maps 2017 Page 1524.
Section 1.28 Intentionally left blank.
Section1.29 "Regular Assessment" means the charge established by Article V of this Declaration.
Section 1.30 "Resident" shall mean and refer to any person living in the Lot Owner's Dwelling, including, but not limited to, Lot Owner's family, temporary guests and Tenants.
Section 1.31 "Restrictions" shall mean all covenants, conditions, restrictions, easements, charges, liens and other obligations provided for in this Declaration, including, without limitation, all notices, rules and regulations issued in accordance with this Declaration.
Section 1.32 "Roadway Declaration" shall mean that certain Declaration of Roadway Easements and Restrictions recorded in Book , Page of the Wake County Public Registry, as the same may from time to time be amended in the manner therein.
Section 1.33 "Rules and Regulations" shall mean and include the rules and regulations made from time to time by the Board of Directors as provided in Section 4.3 below.
Section 1.34 Intentionally left blank.
Section 1.35 "Special Assessment" means the charge established by Section 5.2 of this Declaration.
Section 1.36 "Tenant" means any person occupying any Lot pursuant to a written or oral lease agreement with the Owner thereof or with any other person or entity claiming under the Owner.
Section 1.37 "Working Capital Assessment" means the charge established by Section 5.4 of this Declaration.
When applicable for the sense of this instrument, the singular should be read as including the plural and the male, female, and neuter pronouns and adjectives should be read as interchangeable.
To add a new Section 1.38 as follows:
Section 1.38. “Townhome Section" shall mean those certain Lots 14-81 intended for attached townhome structures as more specifically described in that certain map entitled, “Subdivision / Tree Conservation Plat, Camelot Village II for Camelot Development" recorded at book 2019, pages 1164-1165 of the Wake County Register of Deeds". Additionally, Declarant reserves the right to annex additional Lots upon which townhomes will be constructed during the Development Period. In the event of such annexation, said townhome Lots shall become part of the "Townhome Section" as well.
To add a new Section 1.39 as follows:
Section 1.39. “Townhome Committee" shall mean and refer to a Committee of three (3) Owners from the Townhome Section elected by the Owners of the Townhome Section. The Townhome Committee shall consist of three (3) elected Owners from the Townhome Section, to serve a one-year term of office. The Townhome Committee shall be elected annually by the Townhome Owners during the annual meeting for the Association.
In the event the Townhome Owners shall fail to elect a sufficient number of Townhome Owners to serve on the Townhome Committee, or insufficient volunteers may be found to serve on the Townhome Committee or a resignation occurs on the Townhome Committee which is unable to be filled with a Townhome Owner, then in that event, the Board of Directors for the Camelot Village Property Owners Association, Inc, shall fill all vacancies with any Owner regardless of whether said Owner is a Townhome Owner or not.
Prior to the expiration of the Development Period, Declarant shall appoint all members of the Townhome Committee.
To add a new Section 1.40 as follows:
Section 1.40. "Townhome” shall refer to a townhome structure located in the Townhome Section intended for residential occupancy.
To add a new Section 1.41 as follows:
Section 1.41. "Townhome Lot" shall refer to the separately platted Lots intended for townhomes in the Townhome Section as defined herein.
To add a new Section 1.42 as follows:
Section 1.42. “Townhome Expenses” shall refer to the expenses of maintaining the Townhome Lots and Townhomes as more specifically set forth in Article XVII herein.
To add a new Section 1.43 as follows:
Section 1.43. “Builder” shall mean Dan Ryan Builders - North Carolina, LLC, its successors and assigns.
PROPERTY RIGHTS IN COMMON AREAS
Section3.1 Owner's Easements of Enjoyment. Except as herein otherwise provided, each Owner shall have a right and easement of enjoyment in and to the Common Areas, which shall be appurtenant to and shall pass with the title to his Lot. Each Resident shall have a non-transferable right to use and enjoy the Common Areas, if any, which right shall terminate when such person ceases to have the status of a Resident. Such rights and privileges shall be subject, however, to the following:
3.1.1 The right of the Board or its appointed adjudication panel to suspend the right of any Owner or the privilege of any Resident to use such of the Common Areas that are recreational in nature as determined by the Board for any infraction of the Rules and Regulations relating to the Common Areas for a _period not to exceed sixty (60) days for each such infraction, or for any non-payment or delinquency of the 'Assessments against such Owner's Lot for a period not to exceed the period of such non-payment or delinquency;
3.1.2 The right of the Board to adopt and enforce and from time to time amend reasonable limitations upon use and Rules and Regulations pertaining to the use of the Common Areas, including regulations limiting guests of Owners and Tenants who may use the Common Areas at any one time;
3.1.3 The right of the Declarant during the Development Control Period to modify and recombine Common Areas with Lots so long as the total Common Area and its general utility to the Lot Owners remains substantially the same;
3.1.4 All applicable provisions of valid easements and/or agreements of the Association relating to the Common Areas, including, without limitation, the Roadway Declaration;
3.1.5 The right of the Declarant or the Association to grant permits, licenses and public or private easements over Common Areas for drainage, utilities, roads and other purposes reasonably necessary or useful for the proper Maintenance or operation of the Property;
3.1.6 The right of Declarant or the Association to dedicate or convey portions of the Common Areas to applicable governmental authorities for park or greenway purposes; or,
3.1.7 The right of the Association, in accordance with its Articles and Bylaws, to borrow money for the purpose of improving the Common Areas and facilities and in aid thereof, to mortgage the Common Areas and the rights of such mortgagee in the Common Areas shall be subordinate to the rights of the members hereunder.
Section 3.2 Extension of Use. Any Owner or Resident may extend his right of enjoyment to the Common Areas to the immediate and/or extended members of his family, Residents, guests or contract purchasers of the Owner's Lot, but may not delegate or assign responsibility for the actions of those to whom such right is delegated.
Section 3.3 Title to Common Areas. While reserving the right to build and own facilities on the Declarant's property and to charge reasonable fees for use of said facilities subject to the code, the Declarant hereby covenants for itself, in accordance with Raleigh City Code §10-3073 (a)(1), prior to the sale of the first Lot within the applicable phase of the properties , it will convey fee simple title to the Common Areas designated by plat and located within the property to the Association, free and clear of all encumbrances and liens, except for encumbrances of utility, service, access, storm drainage and other similar service or utility easements. The Association shall be deemed to accept such Common Areas for ownership and Maintenance as necessary.
Section 3.4. Use of Common Areas by Declarant. In addition to the specific rights and easements reserved herein, Declarant and its affiliates and associates shall have the same rights of use and enjoyment of the Common Areas as the Lot Owners during the Development Period, and in addition shall have the right to use Common Areas for promotional, sales and similar purposes until all of the lots owned by the Declarant have been sold.
Section 4.1 Homeowners Association. There is to be created a North Carolina non-profit corporation, known as Camelot Village Phase I Homeowners Association, Inc., which shall be responsible for the Maintenance, management and control of the Common Areas and upon each Lot and Dwelling as more specifically set forth in this Declaration.
Section 4.2 Board of Directors and Officers. The Board of Directors, and such officers as they may elect or appoint in accordance with the Articles or the Bylaws, shall conduct the affairs of the Association. The Board of Directors may also appoint committees and managers or other employees and agents who shall, subject to the general direction of the Board of Directors, be responsible for the day-to-day operation of the Association.
Section 4.3 Rules and Regulations. By a majority vote of the Board of Directors, the Association may, from time to time adopt, amend and repeal Rules and Regulations with respect to all aspects of the Association's rights, activities and duties under this Declaration, however, the Board of Directors cannot alone vote to amend this Declaration. The Rules and Regulations may, without limitation, govern use of the Subdivision, including prohibiting, restricting or imposing charges for the use of any portion of the Subdivision by Owners, Residents or others, interpret this Declaration or establish procedures for operation of the Association or the administration of this Declaration; provided, however, that the Rules and Regulations shall not be inconsistent with this Declaration, the Articles, Bylaws or the terms of the Roadway Declaration or the Recreational Facilities Easement Agreement. A copy of the Rules and Regulations, as they may from time to time be adopted, amended or repealed, shall be Maintained in the office of the Association and shall be available to each Owner upon request.
Section 4.4 Membership of the Association. The Declarant and every Lot Owner shall be a Member of the Association. Such Lot Owner/Member shall abide by the Association's Rules and Regulations, shall pay the Assessments provided for in this Declaration, when due, and shall comply with decisions of the Association's governing body. Conveyance of fee simple title to a Lot automatically transfers membership in the Association without necessity of further documents; provided, however, that any such person, group of persons or entity who holds such interest solely as security for the performance of an obligation shall not be a Member. Membership shall be appurtenant to and may not be separated from ownership of any Lot that is subject to Assessment.
Section 4.5 Classes of Membership. The Association shall have two (2) classes of Membership:
4.5.1 Class A Members. Every person, group of persons, or entity which is a record Owner of a fee interest in any Lot shall automatically be a Class A Member of the Association except the Declarant during the Development Control Period; provided, however, that any such person, group of persons or entity who holds such interest solely as security for the performance of an obligation shall not be a Member. A Class A Membership shall be appurtenant to and may not be separated from ownership of any Lot upon which a Dwelling Unit has been constructed that is subject to Assessment. Class A Members shall be entitled to one (1) vote for each Lot in which they hold the interest required for membership. In the event that more than one person, group of persons or entity is the record Owner of a fee interest in any Lot, then the vote for the membership appurtenant to such Lot portion shall be exercised as they among themselves determine, but in no event shall more than one (1) vote be cast with respect to any Lot. In the event agreement is not reached, the vote attributable to such Lot shall not be cast.
4.5.2 Class B Members. The Class B Member shall be the Declarant. Prior to the termination of the Development Period, each Class B Member shall have one vote with respect to each Lot owned by such Member.
4.5.3 Voting. Except to annual ratify the budget as required by NCGS §47F-3-104 (see also Article XVI, Section 5(c) herein), and any other matter required by the Planned Community Act, Class A Members shall not be entitled to exercise any vote until the expiration of the Development Period. After the expiration of the Development Period, each Class A Member shall have one vote with respect to each Lot owned by such Member. The right of any Class A member to vote may be suspended by the Board of Directors or its appointed adjudication panel for failure of a Lot Owner to pay dues and assessments or failure to comply with the decisions of the Association or its governing body. Upon expiration of the Development Period, the Class B Member shall entitled to six (6) votes for each lot owned by the Class B Member.
Section 4.6 Reservation of Special Declarant Rights. Pursuant to Section 47F-1-103(28) of the Act, Declarant hereby reserves unto itself without further notice and without the joinder or consent of any Owner, Special Declarant Rights as defined in Article I. When choosing to exercise those rights, the Declarant may take under advisement from the Association the results of any vote by its members or decision by its Board of Directors, Architectural Committee, or any other committee, but will not be bound by any decision or vote by the Association.
Section 4.7 Maintenance Obligations of the Association. Amended 7/8/2019
The Association, at its expense, shall Maintain, operate and keep in good repair, unless such obligations are assumed by any municipal or governmental agency having jurisdiction thereof, the Common Areas and all improvements located thereon for the common benefit of the Subdivision. This shall include, without limitation, the Maintenance, repair, replacement and painting of the following landscaping and improvements (to the extent that such improvements or landscaping are located upon or constitute Common Areas): (a) all private roadways, driveways, pavement, sidewalks, walkways and uncovered parking spaces; (b) all lawns, trees, grass and landscape areas, shrubs and fences, except as otherwise set forth herein below; (c) the stormwater control facilities located on the Common Areas; (d) all conduits, ducts, utility pipes, plumbing, wiring and other facilities which are part of or located in, or for the furnishing of utility services to, the Common Areas and which are not for the exclusive use of a single Dwelling; and (c) the exterior of the Townhomes and landscaping and such additional maintenance on the Townhome Lots as determined by the Townhome Committee and as set forth more specifically in Article XVII herein.
The Association shall make the determination as to when Maintenance, repair, replacement and care shall be done, and its determination shall be binding as to the Common Areas. The Townhome Committee shall make the determination as to when maintenance, repair, replacement and care shall be done, and its determination shall be binding as to the Townhomes and Townhome Lots. It shall be the duty of the Townhome Committee to levy a separate assessment against Townhome Owners in a sufficient amount to cover maintenance, repair and replacement obligations of the Townhomes and Townhome Lots set forth in Article XVII. In the event the Townhome Committee fails to do so, the Board of Directors may do so pursuant to Article 5.1 herein. Declarant shall have the right to employ a manager to oversee and implement the Association's Maintenance obligations, and the Association shall pay any such management fees incurred thereby. The Association shall also perform the other duties prescribed by this instrument or the Association's Rules and Regulations.
Section 4.8 Maintenance Obligation of the Lot Owners. The responsibilities of each Lot Owner shall include:
4.8.1 To clean, Maintain, keep in good order, repair and replace at his or her expense all portions of his or her Lot and Dwelling. Any repair, replacement and Maintenance work to be done by a Lot 'Owner must comply with any Rules and Regulations of the Association including architectural control and visual harmony.
4.8.2 To perform his responsibilities in such manner so as not unreasonably to disturb other persons residing within the Subdivision.
4.8.3 Not alter, decorate or change the appearance of any exterior portion of his Dwelling, without the written consent of the Association.
4.8.4 Not to impair the use of any easement without first obtaining the written consents of the Association and of the Owner or Owners for whose benefit such easements exists.
4.8.5 Each Lot Owner shall be deemed to agree by acceptance of delivery of a deed to a Lot, to repair and/or replace at his or her expense all portions of the Common Areas which may be damaged or destroyed by reason of his or her own intentional or negligent act or omission, or by the intentional or negligent act or omission of any invitee, tenant, licensee family member contractors, including, but not limited to any repairs necessary which result from damage incurred by pets or vehicles owned by the Lot Owner, or owned by any Resident guest, invite; Tenant or licensee of such Lot Owner. To the extent that any Common Area is damaged as an insurable loss and the proceeds from the Association's insurance policy are utilized to pay for the loss, the Owner shall be responsible for payment of the deductible as an Individual Assessment in accordance with Section 5.5 and Section 7.7 below.
Section 4.9 Construction Defects. The obligations of the Association and of the Lot Owners to repair, Maintain and replace the portions of the Subdivision for which they are respectively responsible shall not be limited, discharged or unreasonably postponed by reason of the fact that any Maintenance, repair or replacement may be necessary to cure any latent or patent defects in materials or workmanship in the construction of the project. The undertaking of repair, Maintenance or replacement by the Association or Owners shall not constitute a waiver of any rights against any warrantor but such rights shall be specifically reserved. Likewise, this Section 4.9 is not intended to work for the benefit of the person or entity responsible for the construction defect. Unless required by the code, performance by Association may be delayed if Association does not have the means or the funds to repair the defect or if by repairing the defect, Association would be compromising the right to sue to have the defect corrected and/or to collect damages caused by the defect.
Section 4.10 Effect of Insurance or Construction Guarantees. Notwithstanding the fact that the Association and/or any Lot Owner may be entitled to the benefit of any guarantee of material and workmanship furnished by any construction trade responsible for any construction defects, or to benefits under any policies of insurance providing coverage for loss or damage for which they are respectively responsible, the existence of construction guarantee or insurance coverage shall not excuse any unreasonable delay by the Association or any Lot Owner in performing his obligation hereunder. Likewise, this Section 4.10 is not intended to work for the benefit of the person or entity responsible for the construction defect. Unless Required by the code, performance by Association may be delayed if Association does not have the means or the funds to repair the defect or if, by repairing the defect, the Association would be compromising the right to sue to have the defect corrected and/or to collect damages caused by the defect.
COVENANT FOR ASSESSMENTS
Section 5.1 Assessments.
Each Lot Owner of any Lot by acceptance of a deed therefor, whether or not it shall be so expressed in such deed, is deemed to covenant, and agree to pay to the Association the assessments described in this Article. 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 fell due. The personal obligation for the delinquent assessments shall not pass to his successors in title unless expressly assumed by them; however, the obligation shall run with the land as an encumbrance and lien. Provided, however, no annual and special assessments shall be owed by an individual or entity constructing a dwelling on a Lot until a Certificate of Occupancy has been issued for the dwelling on the Lot.
The Townhome Committee shall determine annually a separate assessment for the Townhome Lots to cover the annual budget for the Townhome Expenses as contemplated in Article XVII. In the event the Townhome Committee fails to levy an adequate assessment to cover the Townhome Expenses in Article XVII herein, the Board of Directors may determine said assessment, or raise said assessment, to cover the actual Townhome Expenses. The Townhome assessment shall include the Townhome Expenses, in addition to the normal assessment assessed against single family detached home Lots.
It shall be the duty of the Townhome Committee to authorize whatever collection efforts are deemed necessary to ensure full collection of the annual separate Townhome assessment is fully levied and collected. In the event the Townhome Committee fails to authorize collection of assessments from Townhome Owners, the Board of Directors may do so at its discretion in order to ensure collection of sufficient funds to cover operating expenses for the Townhome Section.
Section 5.2 Regular Assessments. Regular Assessments for the payment of the Common Expenses shall be made in the manner provided herein, and in the manner provided in the Bylaws. The Regular Assessment is established for the benefit and use of the Association and shall be used in covering all of the Common Expenses.
Section 5.3 Special Assessment Amended 7/8/2019
In addition to levying Regular Assessments, and to the extent that the reserve fund is insufficient, the Board of Directors may levy Special Assessments to construct, structurally alter, or replace improvements which are a part of the Common Areas, provided that funds shall not be assessed for any capital improvement in excess of Twenty Five Thousand and 00/100 Dollars ($25,000.00) for any one item or in excess of Fifty Thousand and 00/100 Dollars ($50,000.00) in the aggregate in any one calendar year (“Capital Expenditure Limit) without the prior written consent of two-thirds (2/3) of the votes of the Members who are voting either in person or by proxy at a meeting duly called for such purpose or unless expressly stated in the annual budget. Written notice of any meeting called for the purpose of taking any action authorized under this Article shall be sent to all members not less than 10 days nor more than 60 days in advance of the meeting. The Board of Directors (or the Townhome Committee as it relates to the Townhome Expenses) shall have the authority to adjust the Capital Expenditure Limit annually to account for inflation, which adjustment shall be effective each January (hereinafter referred to as the "Adjustment Date") commencing January 1 of the next year following the year during which the sale of the first Lot by Declarant. As of each Adjustment Date, the Capital Expenditure Limit shall be increased from the Capital Expenditure Limit on the date of this Declaration ("Effective Date") by a percentage equal to the percentage increase, if any, in the Consumer Price Index, All Urban Consumers (“CPI-U'), (1982 – 1984=100), All Items, as complied and published by the Bureau of Labor Statistics, U.S. Department of Labor “CPI") from the Effective Date to the Adjustment Date. If after the date of this Declaration the CPI is converted to a different standard reference base or otherwise revised or ceases to be available, the determination of any new amount shall be made with the use of such conversion factor, formula or table for converting the CPI as may be published by any other nationally recognized publisher or similar statistical information reflected by the Board. Until the expiration of the Development Period, consent of the Declarant shall be required for the capital improvement to be approved. In accordance with Section 5.6.4, The Board of Directors shall calculate each Lot's proportionate share of the Special Assessment for the capital improvements, and shall give the Lot Owner(s) written notice of the proportionate share and of the date(s) that the Special Assessment is due and payable.
In addition to the above, the Owners of the Townhome Lots may levy a Special Assessment, applicable to the Townhome Lots only, for the purposes of defraying the cost for repair, restoration or replacement of the exterior building surfaces of the Townhomes, including without limitation, the roofs and siding of the Townhomes. Such Special Assessment must be approved by two-thirds (2/3) of the votes of the Members who are voting either in person or by proxy at a separate meeting of the Townhome Owners duly called for such purpose.
Section 5.4 Working Capital Assessment. Amended 7/8/2019
Except as provided for herein, upon the initial transfer of record of the Lot from the Declarant, the purchaser is required to pay a sum equal to two (2) months of the Regular Assessment due on his or her Lot as his or her initial contribution to the working capital of the Association. This sum is not an advance payment of the monthly Regular Assessment; rather the sum is allocated to a working capital fund to meet unforeseen expenditures and operating expenses or the purchase any additional equipment or services. During the Development Period, the Declarant cannot request any of the working capital funds to defray its expenses, reserve contributions or construction costs. The working capital fund shall be maintained by the Association for deposit to a segregated fund. Additionally, at the closing, each purchaser of a Lot is required to pay a pro-rata share of the Regular Assessment.
No purchaser of a Townhome Lot shall be required to pay a working capital assessment under this Section 5.4.
Section 5.5 Individual Assessment. In the event that the need for Maintenance, repair or replacement of any improvement on the Property, for which the Association has the Maintenance, repair and/or replacement obligation, is caused through the willful or negligent act of an Owner, his family, his guests, his pet(s), or Residents at the home, the cost of such Maintenance, repairs or replacements shall be paid by such Owner. The Board, or the Declarant during the Development Period, at any time may have the Maintenance, repair or replacement done and the cost of such enforcement shall be provided by the Board to said Owner and shall be paid by said Owner within thirty (30) days thereafter, unless an earlier date is otherwise set forth herein.
Section 5.6 Date of Commencement of Assessments, Due Dates; Determination of Regular - Assessments: Fine Assessments.
5.6.1 The monthly Regular Assessment provided for herein shall commence as to each Lot Owner on the first day following the initial conveyance of the Lot to the Lot Owner and shall be adjusted according to the number of days remaining in the month. At the beginning of each calendar year, the Board of Directors shall fix the amount of the monthly Regular Assessment to be paid. Written notice of the monthly Regular Assessment shall be sent to every Lot Owner. The Board of Directors shall establish the due dates.
5.6.2 The Board of Directors, or an adjudicator panel established by the Board of Directors, may levy a reasonable Fine Assessment, as a fine or penalty for violation of this Declaration, all in accordance with the Planned Community Act. A lien may be filed for this Fine Assessment and this Fine Assessment may be enforced by foreclosure and otherwise treated as a Regular Assessment.
5.6.3 If the Association is paying the water and/or sewer bill(s) for the Common Areas of the Subdivision, the Association may assess each Lot Owner benefited for its share of the water and/or sewer bill(s). Each Lot Owner shall bear an equal share of the bill, but the Association can assess an extra amount against a Lot Owner to recover the cost of any extraordinary amount of water used by that Lot Owner. "Extraordinary" shall be as determined by the discretion by the Board of Directors. The Assessment for water and sewer shall be part of the Regular Assessment and shall be considered a Common Expense.
5.6.4 Both Regular and Special Assessments for a Lot Owner shall be determined by the Association January 15t, based upon the proportion that each Lot bears to the aggregate number of Lots located on the Property, not counting those owned by Declarant which are not being assessed. The addition of Lots sold to third party owners or annexed to the Subdivision during the year does not affect the Lot Owner's original assessment. The monthly assessment of these additional Lots shall be calculated in the same manner as were the other Lots that were owned January 15`, using the new denominator.
Section 5.7 Billing. The Association shall inform each Lot Owner of the amount of the total Regular Assessment due. This Regular Assessment may be paid in monthly installments or as otherwise required by the Association. The Lot Owner must pay his Lot's required Regular Assessment in advance on the first calendar day of each month, unless the Association otherwise directs. Payment is to be made to such person at such an address as Association determines. Special Assessments are due thirty (30) days after the bill for the Special Assessment has been mailed or otherwise sent out by Association, unless the Association otherwise directs. The Lot Owners shall be obligated to begin paying the Regular Assessment as of the first day of the initial conveyance of the Lot from Declarant. If the Subdivision is expanded and additional Lots owned by the Declarant are brought into the Subdivision during a given Assessment year, those additional Lots shall begin paying the Regular Assessment on the first day of the initial conveyance of the Lot from Declarant to the Lot Owner. If the added Lots are not owned by the Declarant, then they are owned by Lot Owners and shall be assessed from the first day after the expansion is recorded at the Wake County Register of Deeds.
Section 5.8 Common Surplus. If the Regular Assessment collected in any given year is in excess of the actual Common Expenses for that year, the Board may, at its sole discretion (a) return each Owner's share of the Common Surplus; (b) credit each Owner's share of the Common Surplus to each Owner's payment as for the Regular Assessment for the following year; or (c) apply the Common Surplus to the reserve.
Section 5.9 Assessment Certificate. In accordance with NCGS §47F-3-118(b), the Association shall, within ten business days after receipt of written demand, furnish to any Owner liable for Assessments a certificate in writing signed by an Officer or other authorized agent of the Association, setting forth the status of said Assessments; i.e., "current", and if not current, "delinquent" and the amount due. Such certificate shall be conclusive evidence of the payment of any Assessment therein stated to have been paid. A reasonable charge to cover labor and materials may be made in advance by the Association for each certificate.
Section 5.10 Books and Records of the Association. The Association shall keep full and correct books of account. The Association shall make available to the Declarant, all Lot Owners, and the holders of all first 'mortgages on Lots, current copies of the books, records and financial statements of the Association upon reasonable request during normal business hours. All funds collected by the Association shall be held and expended solely for the purposes designated by this Declaration and shall be deemed to be held for the use, benefit and account of the Association and all of the Lot Owners. All books and records must be kept in accordance with the Planned Community Act and good accounting procedures and must be reviewed at least once a year by an independent accounting firm.
Section 5.11 Non-Payment of Assessment. Any Assessments levied pursuant to these covenants which is not paid within 30 days or longer of the date when due shall be delinquent and shall, together with such interest, any other costs as set out elsewhere in this Declaration, thereupon become a continuing lien upon the Lot which shall bind the Lot in the hands of the then Owner and the Owner's successors and assigns. The claim of lien shall be recordable once the Assessment has become delinquent and shall continue in effect until the payment of all sums secured is fully paid. The Association may bring an action at law against the Lot Owner personally obligated to pay the same and/or foreclose the lien against the Lot, in either of which events interest, costs and reasonable attorneys' fees shall be added to the amount of each Assessment. No Lot Owner may waive or otherwise escape liability for the Assessments by non-use or waiver of use of the Common Areas or by abandonment of his Lot. Further, the Association may bring an action to seek a monetary judgment against the person owing the Assessment. Section
5.12 Priority of Association Lien. The lien provided for in this Article V shall take priority over any lien or encumbrance subsequently arising or created, except liens for real estate taxes and assessments and liens of bona fide first mortgages which have been filed of record before a claim of this lien hereunder has been docketed in the office of the clerk of superior court in Wake County, and may be foreclosed in the same manner as a mortgage on real property under power of sale in an action brought by the Association in accordance with the Planned Community Act. The Association is entitled to recover its reasonable attorneys' fees and court costs and collection costs, as part of the lien. In any such foreclosure action, the Association shall be entitled to become a purchaser at the foreclosure sale.
Section 5.13 Disputes as to Common Expenses; Adjustments. Any Lot Owner who believes that the portion of Common Expenses chargeable to his Lot, for which an assessment lien has been filed by the Association, has been improperly charged against his or her Lot, may bring action in an appropriate court of law.
Section 5.14 Purchaser at Foreclosure Sale Subject to Declaration, Bylaws, Rules and Regulations of the Association. Any purchaser of a Lot at a foreclosure sale shall automatically become a Member of the Association and shall be subject to all the provisions of this Declaration, the Bylaws and the Rules and Regulations in the same manner as a lot purchaser.
Section 5.15 Non-Liability of Foreclosure Sale Purchaser for Past Due Common Expenses. When the holder of a first mortgage or first deed of trust of record or other purchaser of a Lot acquires title to the Lot as a result of foreclosure of the first mortgage first deed of trust or by deed in lieu of foreclosure, such acquirer of title, his, her or its successors and assigns, shall not be solely liable for the share of the Common Expenses or other Assessments by the Association chargeable to such Lot which became due prior to the acquisition of title to the Lot by such acquirer, other than Assessments for which a claim of lien has been docketed with the Wake County clerk of superior court prior to the recordation of the lien being foreclosed. Such unpaid share of Common Expenses or Assessments shall be deemed to be Common Expenses collectible from all of the Lots, including that of such acquirer, his, her or its successors or assigns. This provision shall not relieve the party acquiring title or any subsequent Owner of the subject Lot from paying future Assessments.
Section 5.16 Liability for Assessments Upon Voluntary Conveyance. In a voluntary conveyance of a Lot, any grantee or his or her first mortgagee shall inform the Board of Directors in writing of such contemplated conveyance and such grantee or first mortgagee shall be entitled to a statement from the Board of Directors of the Association setting forth the amount of all unpaid Assessments (including current Assessments) against the grantor due the Association. Neither the grantee nor the mortgagee shall be personally obligated for any delinquent Assessments, but such delinquent Assessments, along with interest, late charges, costs and reasonable attorneys fees shall be a lien against the Lot in accordance with Section 5.11 and Section 5.12 herein. Section
5.17 Late Charge. The Association may impose a charge against any Lot Owner who fails to pay any amount assessed by the Association against his Lot within ten (10) days after such Assessments are due and payable and who fails to exercise his rights under this Declaration or under the laws of the State of North Carolina to successfully contest such Assessment. The amount of the late charge shall be the greater of (a) twenty and 00/100 Dollars ($20.00), or (b) ten percent (10%) of the delinquent amount, or such other amount as may be determined by the Association from time to time. Additionally, if a Lot Owner shall be in default in payment of two installment payments upon an assessment or in default in payment of two consecutive monthly assessments, or in default in payment of any single monthly assessment more than three times in the previous twelve-month period, the Association has the right to accelerate all monthly Assessments remaining due in the current fiscal year. The total of such Assessments, together with the delinquent Assessments shall then be due and payable by the Lot Owner no later than ten (10) days after the delivery of written notice of such acceleration to the Lot Owner or twenty (20 days) days after mailing of such notice to him by certified mail, whichever occurs first. If such acceleration amount is not paid by the due date, the above-described late charge may be imposed on the part of such accelerated amount not paid by the due date.
Section 5.18 Miscellaneous.
5.18.1 The Association may change the interest rate due on delinquent Assessments (including any late charges), except that the rate cannot be changed more often than once every six (6) months. As of its effective date, the new interest rate will apply to all Assessments then delinquent.
5.18.2 The Lot Owner has the sole responsibility of keeping the Association informed of the Lot Owner's current address if different from the Lot owned. Otherwise notice sent by Association to the Lot is sufficient for any notice requirement under this Declaration.
5.18.3 The lien under this Article V arises automatically, and no notice of lien need be recorded to make the lien effective.
5.18.4 The Assessment lien includes all collection costs, including demand letters, preparation of documents, reasonable attorneys' fees, court costs, filing fees, collection fees, and any other expenses incurred by the Association in enforcing or collecting the Assessment.
5.18.5 Any Assessment otherwise payable in installments shall become immediately due and payable in full without notice upon Default in the payment of any installment. The acceleration shall be at the discretion of the Board.
5.18.6 No Lot Owner may exempt himself or herself from liability for his or her contribution toward the Common Expenses by waiver of the use or enjoyment of any of the Common Areas or by the abandonment of his or her Lot.
5.18.7 This Section 5.18 applies to every type of Assessment.
EASEMENTS AND ENCUMBRANCES
Section 6.1 Easement for Encroachments. The Dwellings, all utility lines, and all other improvements as originally constructed by or on behalf of Declarant shall have an easement to encroach upon any setback, Lot or Common Area as a result of the location of the building, utility lines and other improvements across boundary lines between and along Lots and/or the Common Areas, or as a result of building or improvement movement or alterations or additions from time to time, provided that such alterations or additions have complied with the requirements of this Declaration.
Section 6.2 Lot's Utility Easements. Easements are granted in favor of each Lot Owner to and throughout the Common Areas and, if necessary, the setback areas of any other Lots, as may be necessary for the installation, Maintenance, repair and use of underground water, gas, sewer, power and other utilities and services including power and communication, now or hereafter existing, including Maintaining, repairing and replacing any pipes, wires, ducts, conduits, equipment, fixtures, utility, power or communication lines or equipment, or other components. The foregoing notwithstanding, no Lot Owner may exercise the easement rights reserved in this Section 6.2 without the prior written approval of the Board as described in Section 6.6 below and the Declarant, so long as it owns a Lot in the Subdivision.
Section 6.3 Utility Easements. Easements are reserved and/or granted hereby in favor of the Declarant and/or the Association through each Lot (provided that such easements shall not materially and unreasonably interfere with the use of any dwelling located upon any Lot) and the Common Areas for the purpose of installing, laying, Maintaining, repairing and replacing any pipes, wires, ducts, conduits, equipment, fixtures, utility, power or communication lines or equipment, or other components throughout the Common Areas. Without limiting any other provision in this Article 6, it is understood that Declarant's easement rights reserved herein may be utilized for the benefit of property within or outside of the Subdivision. Each Lot Owner and/or his respective mortgagee by acceptance of a deed conveying such ownership interest and each mortgagee encumbering such ownership interest, as the case may be, hereby irrevocably appoint Declarant, or the Association, as the case may be, as his attorney in fact, coupled with an interest, and authorize, direct and empower such attorney, at the option of the attorney, to execute, acknowledge and record for and in the name of such Lot Owner and his mortgagee, such easements or other instruments as may be necessary to effect the purpose of this Section 6.3. The easements may be assigned and/or granted by the Declarant and/or the Association to any utility or service company.
Section 6.4 General Easements. An easement is hereby reserved and/or granted in favor of the Declarant and/or the Association in, on, over and through the Common Areas, the Lots and/or Dwellings for the purposes of Maintaining, cleaning, repairing, improving, regulating, operating, policing, replacing and otherwise dealing with the Common Areas, Lots and/or Dwellings, including all improvements thereon as required or permitted by the Constituent Documents or applicable law. An easement is hereby reserved in favor of Declarant over the Common Areas for the purpose of advertising or promoting sales of Lots or Dwellings in the Subdivision.
Section 6.5 Access Easement. Appurtenant to each Lot is an easement over any Common Area for necessary pedestrian and vehicular ingress and egress to and from any such Lot over the Common Areas, to and from a thoroughfare. The easement shall be over such walkways, driveways, or other ways as are designated by the Declarant and/or the Association and shall be subject to the terms of the Constituent Documents.
Section 6.6 Use of Easement. Any use of the rights and easements granted and reserved in this Article VI shall be reasonable. If any damage, destruction, or disturbance occurs to a Lot or Common Area as a result of the use of any easement or right, the Lot or Common Area shall be restored by, or at the direction of, the Association promptly in a reasonable manner at the expense of the person or persons making the use of the easement or right that resulted in the damage, destruction or disturbance. Before beginning work, Association may require all or any part of the expected expense to be prepaid by that person or those persons liable for the expense. Additionally, should any Lot Owner other than Declarant elect to exercise its easement rights hereunder, it shall be required to obtain the Board's prior written approval (not to be unreasonably withheld), after providing the Board with detailed plans of its proposed work, as well as evidence of appropriate insurance and other such reasonable information or assurances as the Board may require. No easement may be granted across, through, over, or under any Lot or Common Area, which materially restricts ingress and egress to the Lot or Common Area, unless reasonable alternate ingress and egress is provided or unless the restrictions is only temporary. All easements reserved hereunder shall be perpetual and non-exclusive.
Section 6.7 Reservation of Access Easement by Declarant. Declarant reserves an easement for itself to enter upon the Subdivision for access, including ingress and egress for both vehicles and pedestrians, to and from any public street, road, land, walkway or right-of-way. The easement shall be over the streets, sidewalks, bridges and other access ways of the Subdivision. Declarant further reserves the right to connect, at Declarant's expense, to any street, roadway, walkway or other means of access that are located on the Common Areas of the Subdivision. This reservation of access easements and the right of connection should be construed liberally in favor of the Declarant, in order to facilitate the development of all or any portion of the Subdivision.
Section 6.8 Drainage Easement. In addition to the foregoing reserved specific easements, the Declarant, during the Development Period, and thereafter the Association, may cut and create drains and drain ways both above ground and underground for the purpose of facilitating the removal of surface water whenever such action may appear to be necessary in order to Maintain reasonable standards of health, safety and appearance along, over or across any Lot.
Section 6.9 Reservation of Construction Easement by Declarant. The Declarant reserves the nonexclusive right and easement to temporarily go upon the Subdivision in order to complete the development of the Subdivision and the construction of the improvements to be located therein, and to develop other neighboring land without limitation. The easement should be construed broadly in favor of the Declarant, including giving Declarant the right to store temporarily construction materials, equipment or dirt. After the construction is finished, Declarant must, at Declarant's cost, repair any damage done to the Subdivision including to any landscaping. As soon as reasonably possible after Declaration has completed construction on the neighboring land, Declarant must remove all debris, equipment, materials and dirt from the Subdivision.
Section 6.10 Roadway Easement. Pursuant to the Roadway Declaration, Declarant has reserved for the benefit grants to all Owners and Residents, the non-exclusive right of ingress and egress on, over and across all public and private roadways (the "Roadways") located on or to be located on a portion of the Subdivision which private roadways extend between one or more publicly dedicated streets. Roadways (other than those (if any) that have been accepted by applicable governmental authorities for Maintenance, constitute Common Areas and shall be Maintained, insured, and repaired by the Association in accordance with this Declaration and the Roadway Declaration. The Declarant hereby reserves the right (but not the obligation), in its sole discretion, to annex additional Roadways into the Subdivision. Notwithstanding the foregoing to the contrary, no part of the Roadway shall be dedicated or transferred to a unit of local government without acceptance of the unit of local government involved.
Section 6.11 Declarant's Easements: General. The easements and grants reserved for and granted to the Declarant also benefit and bind their respective guests, invitees or lessees, including, without limitation, assignees of Declarant who do not own property within the Subdivision. The reservations and easements contained in Article VI expressly include the right to cut any trees or other growth and the grading, cutting or ditching of the soil and other action necessary to complete the construction activity except within City of Raleigh greenways, tree conservation and permanently protected undisturbed open space areas shown on plats. All actions authorized in this Article shall conform to City Ordinances.
Section 6.12 Vegetation Removal. Except within City of Raleigh Greenways, Tree Conservation Areas and Permanently Protected Undisturbed open space areas shown on plats. All actions authorized in this Article shall conform to City Ordnances. Explanation — The property is zoned R-6 CUD. According to condition number of Z-35-03 no more than 30% of the open space required in R-6 CUD zoned land maybe disturbed for utilities stormwater devices and roads. See also Article XVI Part A Sections 7 and 8.
Section 6.13 Easements to Run with Land. All easements and rights described in this Article VI are easements appurtenant, running with the land, perpetually in full force and effect, and at all times shall inure to the benefit of and be binding on the Declarant and any Owner, purchaser, mortgagee, and other person or entity now or hereafter having an interest in the Subdivision, or any part or portion of it.
Section 6.14 Reference to Easements and Deeds. Reference in the respective deeds of conveyance or any mortgage or trust deed or other evidence of obligation, to the easements and rights described in this Declaration, shall be sufficient to create and reserve such easements and rights to the respective grantees, mortgagees and trustees in said instruments as fully and completely as those such easements and rights were recited fully and set forth in their entirety in such instruments.
Section 6.15 Emergencies. Every Lot shall be subject to an easement for entry by the Association or the Declarant for the purpose of correcting, repairing, or alleviating any emergency condition which raises upon any Lot that endangers any building or any portion of the Common Properties.
Section 7.1General Insurance. In addition to such insurance as is required to be Maintained by the Association pursuant to the Roadway Declaration and the Recreational Facilities Easement Agreement, the Association shall carry a master policy of fire and extended coverage, vandalism, malicious mischief and liability insurance, and if required by law, workmen's compensation insurance with respect to the Subdivision and the Association's administration thereof in accordance with the following provisions:
7.1.1 The Association shall purchase a master policy for the benefit of the Association, the Lot Owners and their mortgagees as their interest may appear, subject to the provisions of this Declaration and the Bylaws. The "master policy" may be made up of several different policies purchased from different agencies and issued by different companies.
7.1.2 All Common Areas now or at any time hereafter constituting a part of the Subdivision shall be insured against fire and other perils covered by a standard extended coverage endorsement, in an amount not less than one hundred (100%) percent of the replacement value thereof, with a deductible agreed to by the Board of Directors, exclusive of the cost of the land, foundations, footings, excavation, and architect's fees, without deduction for depreciation. The policy shall have cost of demolition, water damage (excluding floods, backing up of sewers and drains, the running off of surface water, and the overflow of a body of water), and agreed amount endorsements and a deductible on any single loss or group of losses within one year in such amounts as shall be found reasonable by the Board of Directors, after carefully considering and comparing the increased premium costs resulting from a low deductible with the lower premium costs but higher per loss risk resulting from a high deductible, together with all other pertinent factors. The policy providing such coverage shall provide that no mortgagee shall have any right to apply the proceeds thereof to the reduction of any mortgage debt. Such policy shall provide coverage for built-in fixtures and equipment in an amount not less than one hundred percent (100%) of the replacement cost thereof (subject to the deductible provisions described above) and shall also provide that the insurer shall have no right to contribution from any insurance which may be purchased by any Lot Owner as hereinafter permitted. Such policy shall also contain either a waiver by the insurer of any increased hazard clause, a severability of interest endorsement, or a provision stating that the coverage will not be affected by the act, omission or neglect of any person unless such act, omission or neglect is within the knowledge and control of the Association prior to the occurrence of the loss. Such policy shall not provide coverage for any items of personal property owned by any Lot Owner.
7.1.3 Such master policy of insurance shall contain provisions requiring the issuance of certificates of coverage and the issuance of written notice to the Association and to any mortgagee or mortgagees of any Lot Owner not less than thirty (30) days prior to any expiration, substantial modification or cancellation of such coverage.
7.1.4 Such insurance by the Association shall not prevent an Owner of a Lot to obtain insurance on its own property, but no Lot Owner may at any time purchase individual policies of insurance covering any item which the Association is required to insure. If any Lot Owner does purchase such a policy, he or she shall be liable to the Association for any damages, expenses or losses which it suffers or incurs as a result thereof, and the Association shall have the same lien rights provided by Article V hereof for Common Expense payments with respect to any such damages, expenses or losses not paid to it by such Owner.
7.1.5 The Board of Directors shall review the insurance coverage required under this Section 7.1 at least annually, and if any of such insurance coverage becomes impossible or impractical to obtain, the Association shall obtain coverage that most closely approximates the required coverage with the deductible provisions as determined by the Board of Directors. In any event, all such insurance must comply, at a minimum, with the applicable requirements set forth in the North Carolina Planned Community Act.
7.1.6 If the required insurance coverage under this Section 7.1 ceases to exist for any reason whatsoever, any mortgagee of any portion of the Subdivision may remedy that lack of insurance by purchasing policies to supply that insurance coverage. The funds so advanced shall be deemed to have been loaned to the Association; shall bear interest at a per annum rate two percent (2%) higher than the basic interest rate in any note secured by the mortgagee's mortgage against a portion of the Subdivision; and shall be due and payable to the mortgagee by the Association immediately. The repayment of this obligation shall be secured by a Special Assessment against all Lot Owners under Article V of this Declaration and shall not require a vote of the Members of the Association, anything to the contrary in this Declaration notwithstanding.
7.1.7 The Association shall also Maintain 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 Areas. The Association shall try to have its liability insurance contain cross-liability endorsements or appropriate provisions to cover liability of the Lot Owners, individually and as a group (arising out of their ownership interest in the Common Areas), to another Lot Owner.
Section 7.2 Fidelity Insurance, The Association must have fidelity coverage against dishonest acts on the part of Officers and employees, Members of the Association, members of the Board, trustees, employees or volunteers responsible for the handling of funds collected and held for the benefit of the Lot Owners. The fidelity bond or insurance must name the Association as the named insured and shall be written in an amount sufficient to provide protection which is in no event less than the insured's total Regular Assessment, plus all accumulated reserves and all other funds held by the Association either in its own name or for the benefit of the Lot Owners.
Section 7.3 Directors' and Officers' Errors and Omissions Insurance. The Association shall purchase insurance to protect itself and to indemnify any Director or Officer, past or present against expenses actually and reasonably incurred by him/her in connection with the defense of any action, suit or proceeding, civil or criminal, in which he is made a party by reason of being or having been such Director or Officer, except in relation to matters as to which he shall be adjudged in such action, suit or proceeding to be liable for negligence or misconduct in the performance of duty to the Association; or to obtain such fuller protection and indemnification for Directors and Officers as the law of North Carolina permits. The policy or policies shall be in an amount to be reasonably determined by the Association.
Section 7.4 Premiums. All premiums upon insurance purchased by the Association shall be Common Expenses. Notwithstanding the foregoing, the Lot Owners may be responsible for certain deductibles to the insurance policies purchased by the Association as outlined in Section 7.1 and Section 7.7 herein.
Section 7.5 Proceeds. Proceeds of all insurance policies owned by the Association shall be received by the Association for the use of the Lot Owners and their mortgagees as their interest may appear; provided, however, the proceeds of any insurance received by the Association because of property damage shall be applied to repair and reconstruction of the damaged property, except as may otherwise be permitted by this Declaration.
Section 7.6 Power of Attorney. Each Lot Owner shall be deemed to appoint the Association as his true and lawful attorney-in-fact to act in connection with all matters concerning the Maintenance of the master policy or any other insurance policy obtained by the Association. Without limitation on the generality of the foregoing, the Association as said attorney shall have full power and authority to purchase and Maintain such insurance, to collect and remit the premiums therefore, to collect proceeds and to distribute the same to the Association, the Lot Owners and their respective mortgagees as their interest may appear, to execute releases of liability and to execute all documents and to do all things on behalf of such Lot Owners and the Subdivision as shall be necessary or convenient to the accomplishment of the foregoing; and any insurer may deal exclusively with the Association in regard to such matters.
Section 7.7 Responsibility of Lot Owner. The Association shall not be responsible for procurement or Maintenance of any insurance covering any Lot or Dwelling, or the contents of and Lot or Dwelling nor the liability of any Lot Owner for injuries not caused by or connected with the Association's operation, Maintenance or use of the Common Areas or other property located in the Subdivision. Each Lot Owner shall, at his or her own expense, obtain public liability insurance for personal injuries or damage arising out of the use and occupancy of or occurring within his Lot or Dwelling. In addition, each Lot Owner shall Maintain fire and extended coverage insurance on his Dwelling, and the contents of his Dwelling. The Association may request the Lot Owner to provide a copy of the policy(s) to the Association evidencing this insurance coverage at any time.
Each Lot Owner agrees that if any Owner(s) damages a building or other improvements now or at any time hereafter constituting a part of the Common Areas of the Subdivision which is covered under the Association's insurance policy, the Owner or Owners causing such damage shall be responsible for paying the lesser of: (a) the insurance deductible due under the Association's insurance policy; or (b) the cost to repair and/or replace any damage to a building or other improvements, which amount shall be due within ten (10) days after the delivery of written notice of such deductible due or replacement/repair costs by the responsible Lot Owner(s) or twenty (20) days after mailing of such notice by certified mail, whichever occurs first. In the event a Lot Owner refuses or fails to pay the insurance deductible or replacement/repair costs in the time period provided in the preceding sentence, the amount thereof may be advanced by the Association and the amount so advanced by the Association shall be assessed to such Owner as an Individual Assessment, which shall be due and payable following seven (7) days written notice.
Section 7.8 Release. All policies purchased under this Article VII by either the Association or the individual Lot Owners shall provide for the release by the issuer, thereof, of any and all rights of subrogation or assignment and all causes and rights of recovery against any Lot Owners, member of their family, their employees, their tenants, servants, agents and guests, the Association, any employee of the Association, the Board, or any occupant of a Dwelling in the Subdivision, for recovery against any one of them for any loss occurring to the insured property resulting from any of the perils insured against under the insurance policy.
Section 7.9 Approximate Coverage. If any of the required insurance coverage under this Article VII becomes or is impossible to obtain or can be obtained only at an unreasonable cost, the Association shall obtain coverage which most closely approximates the required coverage, if such substitute insurance is available. Section
7.10 Additional Policy Requirements. All such insurance coverage obtained by the Association shall be written in the name of the Association, for the use and benefit of the Association, the Lot Owners and their mortgagees, as further identified below. Such insurance shall be governed by the provisions hereinafter set forth:
7.10.1 Exclusive authority to adjust losses under policies in force on the Subdivision obtained by the Association shall be vested in the Association provided, however, that no mortgagee having an interest in such losses may be prohibited from participating in the settlement negotiations, if any, related thereto.
7.10.2 In no event shall the insurance coverage obtained by the Association hereunder be brought into contribution with insurance purchased by individual Owners, occupants, or their mortgagees, and the insurance carried by the Association shall be primary.
7.10.3 All casualty insurance policies shall have an agreed amount endorsement with an annual review by one or more qualified persons.
7.10.4 The Association shall be required to make every reasonable effort to secure insurance policies that will provide for the following:
188.8.131.52 a waiver of subrogation as discussed in Section 7.8; 184.108.40.206 that no policy may be canceled, invalidated, or suspended on account of the acts of any one or more individual Owners; 220.127.116.11 that no policy may be canceled, invalidated or suspended on account of the conduct of any Director, officer or employee of the Association or its duly authorized manager without prior demand in writing delivered to the Association to cure the defect and the allowance of a reasonable time thereafter within which the defect may be cured by the Association, its manager, any Owner or mortgagee; and 18.104.22.168 that any "other insurance" clause in any policy exclude individual Owner's policies from consideration.
Section 8.1 Association. The administration of the Subdivision shall be vested in the Association. The Lot Owner, upon acquiring title, shall automatically become a Class A Member of the Association and shall remain a Member until such time as his ownership of such Lot ceases for any reason, at which time his membership in the Association shall automatically cease. The Association shall have full power and responsibility to administer, operate, sustain, Maintain, and govern the Subdivision including but not limited to, the powers and responsibilities to make prudent investments of funds held by it; to make reasonable Rules and Regulations; to borrow money; to make Assessments; to bring lawsuits and defend lawsuits; to enter into contracts; to enforce all of the provisions of this Declaration, the Bylaws and any other documents or instruments relating to the establishment, existence, operation, alternation of the Subdivision. The powers of the Association to manage other lot owners and residents shall be construed liberally and shall include, without limitation, all of the powers set forth in Section 47F-3-102 of the Planned Community Act.
Section 8.2 Development Period Voting Rights. Notwithstanding the previous paragraph, during the Development Period, Class A Members of the Association do not have any voting rights and the Declarant reserves the right to veto or otherwise not abide by decisions affecting it made by the Association.
Section 8.3 Board of Directors. During the Development period, the Board of Directors shall be appointed by the Declarant.
Section 8.4 Limitations on Association's Duties.
8.4.1 The Association did not construct the improvements, including the Dwellings. The Association does not warrant in any way or for any purpose, the improvements in the Subdivision. Construction defects are not the responsibility of the Association.
8.4.2 The Association shall have a reasonable time in which to make any repair or do any other work that it is required to perform. The Association must first have actual knowledge of a problem. Any determination of the reasonableness of the Association's response, must allow for the facts that the Association is volunteer and that the funds available to the Association are limited.
8.4.3 In case of ambiguity or omission, the Board may interpret this Declaration, and the Board's interpretation shall be final if made without malice or fraud. Notwithstanding the foregoing, the Declarant may overrule any interpretation affecting it during the Development Period; and such interpretation cannot be enforced against the Declarant.
HARMONY, ENVIRONMENTAL CONTROLS
Section 9.1 Harmony and Environmental Controls. The Association shall make Rules and Regulations to govern the construction, design, and appearance of the Lots and the Subdivision as a whole. Such Rules provide for the impositions of fines and penalties. In addition, the following covenants, conditions, and restrictions, as to architectural and appearance controls shall run with the land and shall be binding upon each Lot Owner, his heirs, Residents, Tenants, licensees and assigns.
Section 9.2 Architectural Committee. Except for construction performed by or on behalf of Declarant or as otherwise in these covenants provided, no building, fence, electric pet fence, sidewalk, drive, mailbox, or other structure, or improvement or anything attached thereto visible from the outside of the structure or improvement (including, without limitation, storm doors, windows, drapes or window coverings) shall be erected, placed, altered, or Maintained within the Subdivision nor shall any exterior addition to or change (including any change in color) or alteration therein be made until the proposed building plans, specifications, exterior color and finish, plot plans (showing the proposed location of such building or structure, drives and parking areas), general contractor and all subcontractors, and construction schedule shall have been submitted to and approved in writing by the Board of Directors of the Association, or by any Architectural Committee appointed by said Board of Directors. Refusal of approval of plans, location or specification by said Board of Directors or Architectural Committee may be based upon any reasonable ground, including, without limitation, lack of harmony of external design, color, location or relation to surrounding structures and topography and purely aesthetic considerations which, in the discretion of said Board of Directors or Architectural Committee shall deem sufficient. After approval by the Board of Directors or Architectural Committee is given, no alterations may be made in such plans except by and with their prior written consent. One copy of all plans, specifications and related data shall be furnished the Board of Directors or the Architectural Committee for its records.
Section 9.3 Site Preparation. No site preparation (including, but not limited to grading, elevation work, landscaping, sloping or tree work) or initial construction, erection or installation of any improvements, including but not limited to, buildings, fences, signs, walls, bulkheads, screens, landscaping, plantings, equipment, swimming pools, or other structures shall be commenced, erected, placed, altered or Maintained upon any lot, until the plans and specifications showing the nature, kind, shape, height, materials, exterior colors, siding, location and elevations of the proposed improvements relative to their existing and future septic field disposal areas, landscaping or plantings shall have been submitted to, and approved in writing by, as to harmony of external design and location in relation to surrounding structures and topography. Any plans and specifications that contain inaccurate or missing data or information when submitted shall not be deemed to be approved notwithstanding any prior approval by the Committee.
Upon request, the Association, on behalf of the Architectural Committee, shall provide any Lot Owner with a letter stating that any such work, plans and specifications, landscaping or plantings have been approved, and the letter may be relied upon by third parties.
Section 9.4 Right to Inspect. The Board and the Architectural Committee, or their appointed agents, shall have the right, at their election, but shall not be so required, to enter upon any of the Lots 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.
Section 9.5 Variances. The Architectural Committee shall have the power to grant, and may allow, variances of, and adjustments of, the restrictions established herein in order to overcome practical difficulties and prevent unnecessary hardships in application of the restrictions contained herein; provided, however, that variances or adjustments are done in conformity with the intent and purposes hereof; and provided also, that in every instance such variance or adjustment will not be materially detrimental or injurious to other Lots in the immediate neighborhood. Variances and adjustments may not be of the height, size, and setback requirements, pursuant to the terms herein.
In the event of the grant of any variance in the restrictions established herein, the Architectural Committee shall execute a document acceptable in substance to the Association attesting to such grant and the specific nature thereof in form suitable for recording, so that the Lot Owner may record the document in the Registry of Deeds. The Association shall defer architectural approvals and grants of variances to Declarant unless Declarant has voluntarily relinquished control of the Association.
Section 9.6 Limitation During_Development Period. No action may be taken against Declarant or as a result of an improvement by the Declarant or as a result of a variance granted by the Declarant that occurred during the Development Period.
Section 9.7 No Change in Nature of Subdivision. No Rule or Regulation may be adopted or amended that would (a) directly or indirectly alter the exterior appearance of any part of the Subdivision as Maintained during the Development Period; (b) reduce or discontinue any Maintenance standard or practice in effect during the Development Period; (c) adversely affect the Declarant's sale or leasing of any Lots; or (d) otherwise adversely affect the Declarant, any of its rights, or any Lot owned by it without, in each case, first obtaining the Declarant's written consent.
Section 10.1 Use and Occupancy. The Association shall make Rules and Regulations to govern the use and occupancy of the Subdivision, such Rules provide for the impositions of fines and penalties. In addition, the following covenants, conditions, and restrictions, as to use and occupancy shall run with the land and shall be binding upon each Lot Owner, his heirs, Residents, Tenants, licensees and assigns.
Section 10.2 Purpose of Subdivision. Other than uses provided to Declarant in this Declaration, except as otherwise provided in this paragraph no part of the Subdivision shall be used for other than housing and the common recreational purposes for which the property was designed, and each Lot shall be used only for residential purposes, unless the Board of Directors authorizes some other use. Except for the construction, sales and management activities (including, without limitation, the right of Declarant to Maintain one or more model Dwellings, or sales offices) of the Declarant, no business, trade, industry, occupation or profession of any kind, whether for profit or not for profit, may be conducted, Maintained, or permitted on any part of the Subdivision property external to a Dwelling, or visible from external to a Dwelling. To the extent permitted by law, an Owner may use a portion of his or her Dwelling for an office or studio provided that the activities conducted therein shall not interfere with the quiet enjoyment or comfort of any other Owner or Resident; and provided further that such activities do not appreciably increase the normal flow of traffic or individuals in and out of the Subdivision or in and out of said Owner's Lot. No business sign may be shown for said business.
Section 10.3 Obstruction of Common Areas. There shall be no storage or parking of any items, including baby carriages, playpens, bicycles, wagons, toys, portable pools, vehicles, benches or chairs in any part of the Common Areas, except as permitted by the Rules and Regulations. Patios, porches (except screened in and/or enclosed porches) and decks, may be used only for their intended purposes.
Section 10.4 Parking. Except for vehicles being used by persons providing services to the Declarant, the Association, the Lot Owners or otherwise used or authorized to be used at the Subdivision by the Declarant, no part of the Subdivision may be used for the parking of any tractor or other yard vehicle, trailer coach, house trailer, mobile home, automobile trailer, motorcycle, camp car, recreational vehicle, camper, truck which exceeds 3/4 ton, boat, boat trailer, or any vehicle with letters or other markings over four inches tall or wide, or any other similar vehicle (collectively, "Special Vehicles"), unless such Special Vehicles are parked in the garage of the Lot Owner who owns such Special Vehicle and the garage door of such Lot Owner is completely closed at all times when a Special Vehicle is parked therein. Operative vehicles, other than Special Vehicles, used by a resident of a Lot as a primary source of transportation may be parked in the driveway of such Lot Owner or in any garage space owned by the Owner of such Lot.
However, the residents of any one Lot may not collectively park more than three (3) operative vehicles other than Special vehicles in the Subdivision and there may not be any more vehicles belonging to a residence than are allowed to be parked in a garage or driveway.
Inoperative vehicles (including, but not limited to whether by mechanical failure, by removal of parts, or by lack of current registration or license plate) may not be parked within the Subdivision unless these inoperative vehicles are parked in the garage and the garage door is completely closed. No auto Maintenance and/or repairs may be performed in the Subdivision except if performed inside the garage of a Lot Owner. Vehicles, owned by a Lot Owner or Resident, See Article XVI part A Section parked in violation of any part of this Declaration or in violation of any Rules or Regulations, shall be towed away and stored at the Owner's risk and expense. The Lot Owner or Resident who owns the vehicle or who is the host for any other vehicle user, hereby waives any claim against the Association resulting directly or indirectly out of the towing and agrees to pay the tow and storage bill for the release of such vehicle, unless the towing or immobilization can be shown beyond a reasonable doubt to have been done maliciously by the Association. Note that the Association is not obliged to try to determine the owner of a vehicle and first give notice, before towing the vehicle. If a Lot Owner is not sure about the right to park at any particular area or space, the Lot Owner should request, in writing, a written opinion from the Board. If the Board gives the approval sought by the Lot Owner or if the Board does not answer the written request by the Board, the Lot Owner may park in the space until further written notice to the contrary from the Board. Note that the Association's right to tow a vehicle includes the right to immobilize it. Delivery and Maintenance vehicles are permitted. Notwithstanding the foregoing, this prohibition shall not apply to contractor's trucks and vehicles during the construction of any dwelling, garage or accessory building, it being clearly understood that contractor's trucks and vehicles shall be permitted to park on the roads and streets within the Property until completion of any dwelling, garage or accessory building. The Association may designate a specified storage area for vehicles.
Section 10.5 Compliance With Insurance Policies and Waste. Nothing shall be done or kept in any Dwelling, in the Common Areas or on a Lot which will increase the rate of insurance of the buildings, or contents thereof, applicable for residential use, without the prior written consent of the Association. No Lot Owner shall permit anything to be done or kept in his or her Dwelling, in the Common Areas or on a Lot which will result in the cancellation of insurance on the buildings, or contents thereof, or which would be in violation of any law. No waste will be committed in the Common Areas. All laws shall be obeyed.
Section 10.6 Exterior Surfaces of Buildings. Lot Owners shall not cause or permit anything to be hung or displayed on the inside or outside of windows (except as provided herein) or hung on the outside of the Dwelling doors or placed on the exterior walls of a building no sign (other than those described in Section 10.11 hereof and directional signs or signs concerning the use of the Common Areas), no flag having any meaning to any Owner other than purely decorative or sportsmanship (except the North Carolina or American flag) and no flag shall be of size greater than four feet by six feet, no radio or television antenna of greater than thirty-six (36) inches shall be affixed to or placed upon the exterior walls or roof or any part of the building, or the Common Areas without the prior written consent of the Association. Unless otherwise approved in writing by the Association, Lot Owners shall not cause or permit any curtains, shades or other window coverings to be hung inside or outside any windows, doorways, and/or patio doors which will show any color on the outside other than white, beige, or pastel tones, unless prior approval is obtained from the Declarant or the Architectural Committee. Owners by purchasing their lot agree to waive any right to express their opinions through the use of signs (other than political signs) or flags (other than the North Carolina or American flag) on their home and lot. For the purpose of this Declaration, political signs are defined as signs whose wording is directly and specifically limited to promoting a candidate or a ballot issue by name and is not in contradiction with any other covenant.
Section 10.7 Animals and Pets. No animals of any kind shall be raised, bred, or kept on any Lot or in any Dwelling or in the Common Areas, except that two dogs, two cats or one of each, or two other household pets may be kept in a Dwelling, subject to the Rules and Regulations, provided that it is not kept, bred or Maintained for any commercial purpose, and that it is kept subject to the Rules and Regulations of the Association. Lot Owners may install invisible fences to keep their pets within their Lot. Any other fencing must be approved under Article IX. Without fencing, all household pets must be kept within the confines of the Owner's Dwelling except when being held on hand leash by the pet owner of the animal. No Lot Owner shall install a fence and/or electric fence on any portion of the Common Area. No pet may be "staked", housed, tied up or otherwise left in any Common Area. A Lot Owner shall be responsible for cleaning up after his household pet. Notwithstanding the above, the Association shall have the right to promulgate Rules and Regulations pertaining to the size, number and type of such household pets and the right to levy fines and enforcement charges against persons who do not clean up after their pets. Additionally, the right of an occupant to Maintain an animal in an Owner's Lot or Dwelling shall be subject to termination if the Board in its full and complete discretion, determines that Maintenance of the animal constitutes a nuisance or creates a detrimental effect on the Subdivision or occupants. No doghouse or other structure used or intended for the housing or keeping of animals may be constructed, placed or Maintained on any part of the Common Areas. The exterior appearance of any such structure must be consistent with that of the Dwelling.
Section 10.8 Nuisances. A "nuisance" shall be any noxious or offensive activity, as determined by the Homeowner's Association or the Declarant. No nuisance shall be carried on in any Dwelling or in the Common Areas or on the Lot of a Lot Owner, nor shall anything be done therein, either willfully or negligently, which may be or become an annoyance or nuisance to the other Lot Owners or occupants.
Section 10.9 Structural Change of Building. Nothing shall be done in any Dwelling, or on any Lot, or in, on or to the Common Areas which would structurally change any building, absent the prior written approval of the Board or the Declarant.
Section 10.10 Laundry or Rubbish and Open Fires in Common Areas and Facilities. No clothes, sheets, blankets, laundry of any kind or other articles shall be hung out or exposed on any part of the Common Areas, or on any Lot in a manner visible from any Common Area, neighboring Lot or street. The Common Areas shall be kept free and clear of rubbish, debris and other unsightly materials. All trash, garbage or other rubbish shall be deposited only in covered sanitary containers as provided in Section 10.14 below. No open fires shall be permitted on any part of the Subdivision other than fires in charcoal grills or other similar cooking devices or outdoor fireplaces designed for such purpose located upon Lots, or grills or similar devices (if any), owned by the Association and constituting a portion of the Recreational Facilities, provided the use of such devices does not violate any local governmental rules or regulations.
Section 10.11 Signs.
Section 10.11 Signs is amended as follows: The first sentence is hereby deleted and replaced with:
A Lot is permitted to place and maintain a standard “For Sale” sign only on the Owner’s Lot; provided it is no larger than 24 by 28 inches and no higher than three feet off the ground; “For Rent” signs are not permitted anywhere in the neighborhood.
A Lot Owner is permitted to place Political Signs (as defined in Section 10.6) no larger than two feet by two feet. Political signs may be posted up to forty-five days before through seven days after the election. No other sign that is visible from the outside of Dwellings may be placed on any part of the Subdivision except by the Declarant, required by the Code, or as expressly permitted by the Board of Directors. Declarant and/or the Board shall have the right to immediately remove and dispose of those items in violation of this Declaration. The right is reserved by the Declarant to use any such unsold or unoccupied Dwellings or other structures in the Subdivision as models and/or offices in connection with the construction, sale or rental of Dwellings.
Section 10.12 Alteration of Common Areas. Nothing shall be altered or constructed in or removed from the Common Areas except as otherwise provided in this Declaration and except upon the written consent of the Association. In addition, a Lot Owner must obtain the prior written consent of the Board prior to planting any flowers, herbs or vegetables, on any portion of the Common Area.
Section 10.13 Rental of Lots. Amended 6/23/2015
RESTRICTIONS ON THE LEASING OR RENTAL OF LOTS
In accordance with the restrictions contained in the Declaration, no Owner shall lease or rent its Lot except as may be permitted by these Rules and Regulations. These exceptions are not applicable to the Home-Based Business area of the Live/Work Unit. The following restrictions shall apply to all leases:
1. Any Owner who rents or leases his or her Lot to a tenant shall not be entitled to use and enjoy any common facilities on the Common Area during the period the Lot is occupied by such tenant.
2. No Owner shall lease or rent less than an entire Lot and no more than one family shall live on any one Lot. The Lots shall not be leased or rented for hotel or transient purposes and no rental agreement or lease shall be made for a period of less than twelve (12) months, unless (i) a lease is executed for a shorter term in connection with the sale of a Lot by an Owner who is to temporarily occupy such Lot following the closing of the sale thereof or (ii) a shorter term requested by an Owner is approved by the Board based on sufficient evidence provided such Owner establishing a need for a shorter term. Any Owner leasing a Lot must provide a copy of the Declaration, the Bylaws, and these Rules and Regulations to its tenant. Any lease or rental agreement between an Owner and a tenant shall be in writing and shall provide that it is in all respects subject to the provisions of the Declaration, the Bylaws, and these Rules and Regulations and that any failure by the tenant to comply with such provisions shall be a default under the rental agreement or lease. However, the failure of any lease or rental agreement to so provide shall not excuse any person from complying with the provisions of the Declaration, the Bylaws, and these Rules and Regulations.
3. Owner must provide to the Board in writing such documentation evidencing the leasing arrangement as may be requested by the Board, including, without limitation, the following:
the name of the tenant and the Lot rented or leased;
(b) the current address, email address and telephone number of the Owner;
(c) a true and complete copy of the leases or rental agreement; and
(d) the certification of the Owner and the tenant that the tenant has been given a copy of the Declaration, any applicable amendments, the Bylaws and these Rules and Regulations and that such tenant has been advised of any obligations he may have thereunder as a tenant.
4. In no event shall any lease or rental agreement release or relieve an Owner from the obligation to pay annual and special assessments to the Association, regardless of whether the obligation to pay assessments has been assumed by the tenant in such lease or rental agreement.
Any Owner leasing a Lot shall be responsible for all actions taken by its tenant and such Owner agrees to terminate a lease if the tenant causes repeated violations of the Declaration, Bylaws or these Rules and Regulations.
If any lessor or lessee is in violation of any of the provisions of the foregoing documents, the Association may bring an action in its own name and/or in the name of the lessor to have the lessee evicted and/or to recover damages. If the Court finds that the lessee is or has violated any of the provisions of the Declaration, the Bylaws or the Rules and Regulations, the Court may find the lessee guilty of forcible detainer notwithstanding the facts that the lessor is not a party to the action and/or that the lessee is not otherwise in violation of lessee's lease or other rental agreements with lessor. For purposes of granting the forcible detainer against the lessee, the Court may consider the lessor a person in whose name a contract (the lease or rental agreement) was made for the benefit of another (i.e., the Association). The remedy provided by this Section 10.13 is not exclusive and is in addition to any other remedy or remedies that the Association has. If permitted by present or future law, Association may recover all of its costs, including Court costs and reasonable attorney's fees, and such costs shall be a continuing lien upon the Lot which shall bind the Lot in the hands of the then Lot Owner and the Lot Owner's successors and assigns. Section
10.14 Trash Disposal. Each Lot Owner shall deposit all trash, garbage, or other rubbish by as directed and instructed by the Board. Lot Owners shall keep trash containers at all times in each Lot Owner's garage (if applicable), or in such other location as designated by the Board, except on the days which trash, garbage, or other rubbish is collected by the local waste removal authorities. Any trash containers placed outside by the Lot Owners in the location designated for collection by the local waste removal authorities shall • only remain in such location for a period not to exceed twenty-four (24) hours. The Board shall have the right to dispose of any trash, garbage, or other rubbish of a Lot Owner in violation of this Article X.
Section 10.15 Nondiscrimination. No Owner, or any employee, agent or representative thereof, shall discriminate upon the basis of sex, race, age, color, creed or national origin in the sale, lease or rental of any Dwelling nor in the use of the Common Areas.
Section 10.16 Insurance. Nothing shall be kept, and no activity shall be conducted, on the Property that will increase the rate of insurance applicable to residential use for the Property or any Lots. No Owner shall do or keep anything, nor cause or allow anything to be done or kept, on his Lot or on the Common Properties which will result in the cancellation of insurance on any portion of the Property, or Lots therein, or which will be in violation of any law, ordinance, or regulation. No waste shall be committed on any portion of the Common Properties.
Section 10.17 Fences, Walls and Hedges.
A six (6) foot white vinyl privacy fence is the only fencing allowed and all fences must be properly maintained by the Lot Owner.
No fence, wall, structural landscaping, hedge or other mass planting shall be erected or permitted on the Owner's Lot beyond the front of a dwelling on any Lot, except as approved by the Architectural Committee. No chain link, wire fences of any kind, or split rail fences are allowed.
Section 10.18 Fuel Tanks. No fuel tanks or similar storage receptacles may be exposed to view. Any such receptacles may be installed only within an accessory building or within a screened area behind the home, or buried underground; provided, however, that nothing contained herein shall prevent the Declarant or Association from erecting, placing or permitting the placing of tanks, or other apparatus, on the Property for uses related to the provision of utility or other service.
Section 10.19 Subdividing. No Lot shall be subdivided, or its boundary lines changed except with the prior written consent of the Declarant during the Development Period and thereafter by the Board. However, the Declarant hereby expressly reserves unto itself, and to any successor to which Declarant makes a specific assignment of this right, the right to replat any two (2) or more Lots and/or Common Properties (so long as replatting of the Common Properties conforms with applicable governmental regulations and upon approval by the appropriate governmental authority) shown on the plat of any subdivision of the Property in order to create one or more modified Lots; to recombine one or more Lots and/or Common Properties to create a larger Lot; to eliminate from this Declaration Lots that are not otherwise buildable or Lots and/or Common Areas that are needed for access to any area of the property or are needed for use as private roads or access areas, and to take such steps as are reasonably necessary to make such replatted Lots suitable and fit as a building site or access area or roadway, said steps to include, but not to be limited to the relocation of easements, walkways, and rights-of-way to conform to the new boundaries of the said replatted Lots. If any of the Common Properties is recombined with a Lot, the Association shall execute all necessary documents to effect the recombination. However, in no event will the overall amount or the general utility of Common Areas be significantly reduced by recombination. Any reduction in Common Areas is subject to Part C Section 1(b) of the City Article in that this development is a Cluster Unit subject to 10-3071-10-3073(a) (2). Section 1
Except with respect to the Association's maintenance responsibilities for the Townhome Lots as set forth in Article XVII and subject to any other applicable terms of the Declaration, the Owner of each portion of the Property, at such Owner's sole cost and expense, shall Maintain its portion of the Property, including improvements thereon, in a safe, clean and attractive condition at all times, including but not limited to the following thereon:
10.20.1 Prompt removal of all litter, trash, refuse and wastes;
10.20.2 Lawn Maintenance on a regular basis, including Landscape Easements, Sign Easements and Landscaped Rights-of-Way if requested by the Association or according to the terms of any recorded easement agreements should they exist;
10.20.3 Tree and shrub pruning and removal of dead or diseased trees, shrubs and other plant material;
10.20.4 Maintenance of flower and plant gardens;
10.20.5 Maintenance of exterior lighting and mechanical facilities;
10.20.6 Maintenance of parking areas and driveways;
10.20.7 Maintenance of all Improvements thereon;
10.20.8 Maintaining adequate soil erosion controls;
10.20.9 To the extent not adequately Maintained by the applicable governmental authority, the Association or a public utility provider, Maintenance of the sidewalk, driveway, driveway apron and utility laterals serving each Owner's portion of the Property, even if located in the Common Property. Each Owner also shall provide snow and ice removal for any sidewalks located adjacent to such Owner's portion of The Property. The Townhome Committee shall perform the maintenance obligations on the Townhome Lots as more specifically set forth in Article XVII.
Section 10.21 Recreational Equipment. Portable or above-ground pools shall be limited to two hundred twenty (220) square feet and must be deployed in a fenced-in back yard, and if still visible from any other dwelling must be approved by the Architectural Committee. Playground structures must be installed in a fenced-in back yard, and if still visible from any other dwelling must be approved by the Architectural Committee. Permanently affixed basketball goals must be approved by the Architectural Committee. Portable basketball and soccer/hockey goals must be removed and stored from sight when not in use. Portable goals must not be deployed so as to use the street as the playing surface. Section
10.22 Liability. Each Lot Owner shall perform the foregoing responsibilities in a manner that does not reasonably disturb or interfere with the reasonable enjoyment by the other Owners of their portions of the Property. If any Lot Owner fails to perform any of the foregoing Maintenance Responsibilities, then the Association may give such Lot Owner written notice of the failure and such Lot Owner must, within ten (10) days after such notice is given by the Association, perform the required Maintenance. If any such Lot Owner fails to perform the required Maintenance within the allotted time period, then the Association, acting through its authorized agent or agents, shall have the right and power, but not the obligation, to enter such Lot Owner's portion of The Property and perform such Maintenance without any liability to any Person for damages for wrongful entry or trespass. Such Lot Owner shall be liable to the Association for the costs incurred by the Association and shall reimburse the Association for such within thirty (30) days after the Association mails or delivers to such Lot Owner an invoice therefore.
Section 11.1 Enforcement.
11.1.1 The Association or any member may enforce these covenants, conditions and restrictions. Enforcement of these covenants, conditions and restrictions shall be by any proceeding at law or in equity against any Person or Persons violating or attempting to violate ("Violating Party") any covenant, condition or restriction, either to restrain or enjoin violation or to recover damages, and against the land to enforce any lien created by these covenants. In addition to all other amounts due on account of said violation or attempted violation, the Violating Party shall be liable to the parties enforcing the covenants and/or restrictions of this Declaration (the "Enforcing Parties") for all reasonable attorney's fees and court costs incurred by the Enforcing Parties. Failure or forbearance by the Association or any Owner to enforce any covenant, condition or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter. In any lawsuit filed to enforce this Declaration by injunction or restraint, there shall be and there is hereby created and declared to be a conclusive presumption that any violation or breach or any attempted violation or breach of any of the within covenants, conditions or restrictions cannot be adequately remedied by action at law or by recovery of damages.
11.1.2 In addition to all other remedies of the Association, the Association shall have the right to assess a maximum fine of one hundred dollars ($100.00) per day (or such higher amount as may be allowed by law) per violation against any Owner who violates any provision of this Declaration or the Articles, Bylaws or Rules and Regulations of the Association after such Owner has been given notice of the violation and an opportunity to be heard with respect to the violation at a formal hearing in accordance with such policies and procedures as allowed by law may be adopted from time to time by the Board of Directors or as may be set forth in the Bylaws. Should the finding of a violation be sustained, five days after the hearing, daily fines for a continuing violation may be from that day forward assessed in accordance with such policies and procedures as allowed by law may be adopted from time to time by the Board of Directors or as may be set forth in the Bylaws.
11.1.3 In addition to the above rights, as an enforcement action, the Association may also enter upon a Lot or any land upon which a violation exists to remove any violation, perform Maintenance or make repairs thereon which is the responsibility of a Lot Owner who has failed to remove said violation or to perform such Maintenance or make such repairs (i) after having given such owner at least ten (10) days prior notice, or (ii) without giving notice in the event of an emergency.
11.1.4 In addition to the above rights, the cost of any enforcement action brought by the Association shall be assessed to the Violating Party. Unless otherwise stated, that cost shall include all direct expenses, including but not limited to, the expense to Maintain, remove, store, repair or restore property, administrative expenses to the Association, court costs, and reasonable attorney fees as by law allowed. Unless otherwise stated, the cost shall be payable on the date the next installment of the regular assessment is due. If the Lot Owner fails to reimburse the Association as required, the Association shall have the same rights and remedies for collection of the amount as provided herein for collection of Assessments.
Section 11.2 11.1.5 Any action brought by the Association hereunder may be brought in its own name, in the name of its Board or in the name of its managing agent. In any case of flagrant or repeated violation by a Lot Owner, he or she may be required by the Association to give sufficient surety or sureties for his or her future compliance with the covenants, conditions and restrictions contained in this Declaration, the Bylaws and the Rules and Regulations. Section
11.3 Severability. Invalidation of any one of these covenants, conditions or restrictions by judgment or court order shall in no way affect any other provisions, which shall remain in full force and effect.
Section 11.4 Restrictions Run With Land. The easements or other permanent rights or interests are herein created, the covenants and restrictions of this Declaration shall run with and bind the land, and shall inure to the benefit of and be enforceable by the Association, or the Owner of any Dwelling subject to this Declaration, their respective legal representatives, heirs, successors, and assigns.
Section 11.5 Amendment. Until the termination of the Development Period, the Declarant may amend this Declaration at any time subject to the Code of the City (See City Code Section 10-3073(a). After the expiration of the Development Period and subject to Article XVI part A Section 4, the Association may amend this Declaration as long as said amendment is consistent with the design, scheme and purposes of this Declaration, by the affirmative vote or written agreement of the members of greater than sixty-seven percent (67%) of the members. Any amendment must be recorded in the Wake County Register of Deeds. No such agreement to amend, in whole or in part, shall be effective unless written notice of the proposed amendment is sent to every Member at least thirty (30) days in advance of any action taken, and no such amendment shall be effective with respect to any permanent easements or other permanent rights or interests relating to the Common Areas herein created (unless such amendment is consented to in writing all other beneficiaries of such permanent easements, rights of interests).
Section 11.6 Reservation of Special Declarant Rights. Declarant reserves the right to Maintain sales and management offices, model units, construction trailers, storage or staging areas, and advertising signs upon Lots or the Common Areas and upon Lots owned by it until the expiration of the Development Period and to exercise all other "Special Declarant Rights" as defined in the Planned Community Act.
Section 11.7 Management and Service Contracts. Any agreement for the professional management of the Subdivision of the Common Areas may not exceed three (3) years and shall provide for termination by either party without cause and without payment of a termination fee upon ninety (90) days' notice. After the termination of the Development Period, the Declarant reserves for a period of two years a right of first refusal for all Maintenance and service contracts to be let.
Section 11.8 Binding Determination. In the event of any dispute or disagreement with or between any Owner(s) relating to, or of any other disputes, disagreements or questions regarding, the interpretation or application of the provisions of this Declaration or the Articles or Bylaws of the Association, the determination thereof (i) by Declarant during the Development Period; and (ii) thereafter by the Board of Directors of the Association shall be final and binding on each and all such Owners; providing that any determination which directly or indirectly affects Declarant shall require Declarant's prior consent to become binding upon Declarant.
Section 11.9 Captions and Titles. All captions, titles or headings in this Declaration are for the purpose of reference and convenience only and are not deemed to limit, modify or otherwise affect any of the provisions hereof, or to be used in determining the intent or context thereof.
Section 11.10 Notices. Except as otherwise provided in this Declaration, any notice to any Owner under this Declaration shall be in writing, shall be effective on the earlier of (i) the date when received by such Owner, or (ii) the date which is three days after mailing (postage prepaid) to the last address of such Owner set forth in the books of the Association. The address of an Owner shall be at his Lot (or any of them if more than one) unless otherwise specified in writing to the Association. The Articles and Bylaws shall specify the permissible manner of giving notice for voting and all other Association matters for which the manner of giving notice is not prescribed in this Declaration.
Section 11.11 Governing Law. This Declaration shall be deemed to be made under, and shall be construed in accordance with and shall be governed by, the laws of the State of North Carolina, and suit to enforce any provision hereof or to obtain any remedy with respect hereto shall be brought in state court in Wake County, and for this purpose each Owner by becoming such hereby expressly and irrevocably consents to the jurisdiction of said court.