Rules, Laws, Covenants, Conditions, & Restrictions (CCRs)

 

Compilation of Governing Documents For Hawkeswater At the River taken from the four phases of community development and consolidated into this Master Master 
1. Declaration of Covenants, Conditions and Restrictions For Hawkeswater At The River Subdivision. Recorded 2/22/08 at Book 2745, Page 986
2. First Amendment to the Declaration of Hawkeswater At The River Subdivision. Recorded 3/12/13 at Book 3380, Page 1230
3. Annexation Declaration For Hawkeswater At The River Subdivision. Recorded 1/21/14 at Book 3493, Page 659
4. Second Amendment To Declaration For Hawkeswater At the River Subdivision. Recorded 7/28/14 at Book 3550, Page 465
5. Restated Amendment to Declaration of Covenants, Conditions and Restrictions And Assignment Restrictions- Boatslips For Hawkeswater At The River Subdivision. Recorded 6/7/17 at Book 3916, Page 857
6. Third Amendment To Declaration For Hawkeswater At The River Subdivision. Recorded 10/15/18 at Book 4113, Page 749
7. Fourth Amendment to Declaration For Hawkeswater At The River Subdivision. Recorded 2/13/19 at Book 4155, Page 929

Townhomes
1. First Supplemental Declaration of Covenants, Conditions and Restrictions For Hawkeswater At the River Subdivision. Recorded 7/11/14 at Book 3545, Page 211
2. First Amendment To Supplemental Declaration of Covenants, Conditions and Restrictions For Hawkeswater At the River Subdivision. Recorded 9/29/14 at Book 3570, Page 978

 

 

Bylaws
Rules

1. Rules for Hawkeswater as of 6/7/2021
2. Rule Interpretations adopted 9/28/2021
3. Hawkeswater HOA Architectural Guidelines as of 10/2021

 In addition to other terms defined herein, the following capitalized terms shall have the following meanings as used herein:

SECTION 1. Additional Property shall mean and refer to any lands which are now owned or may be hereafter acquired or developed by Declarant, in addition to the above-described Property, and annexed to and made a part of the Planned Community.

SECTION 2. Allocated Interest shall mean the Common Expense Liability and votes in the Association allocated to each Lot.

SECTION 3. Association shall mean and refer to Hawkeswater Homeowners  Association, Inc., a North Carolina non-profit corporation, its successors and assigns, the owners  association organized pursuant to the Act for the purposes set forth therein.

SECTION 4. Common Elements shall mean and refer to all lands and easements within or appurtenant to the Planned Community owned by the Association, other than a Lot, and intended for the common use and enjoyment of the Owners, including, without limitation, any private roads, greenways, open spaces, parks and stormwater infiltration basins within the Planned Community.

SECTION 5. Common Expenses means expenditures made by or financial liabilities of the Association, together with any allocations to reserves.

SECTION 6. Common Expense Liability means the liability for Common Expenses allocated to each Lot as permitted by the Act, this Declaration or otherwise.

SECTION 7. Declarant shall be used interchangeably with Developer [No longer applicable]

SECTION 8. Declarant Control Period shall have the meaning set forth in Article III hereof.

SECTION 9. Declaration shall mean this instrument as it may be from time to time amended or supplemented.

SECTION 10.  Board of Directors shall be used interchangeably with the Board of Directors and means the body, regardless of name, designated in this Declaration or otherwise to act on behalf of the Association.

SECTION 11.  Limited Common Elements shall mean areas and facilities within any Lot which are for the exclusive use of the Lot Owner but which the Association is obligated to maintain pursuant to Article ___, Section ___.

SECTION 12.  Lot(s) shall mean and refer to any portion of the Planned Community designated for separate ownership by a Lot Owner.

SECTION 13.  Lot Owner shall mean the Declarant or other Person who owns a fee simple title to any Lot, including contract sellers, but excluding those having such interest merely as security for the performance of an obligation.

SECTION 14.  Master Association means a master association as defined in the Act.

SECTION 15. Person means a natural person, corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision, or agency or other legal or commercial entity.

SECTION 16.  Planned Community shall mean and refer to the Property plus any Additional Property made a part of the Planned Community by the exercise of any Special Declarant Right.

SECTION 17.  Purchaser means any Person, other than the Declarant or a Person in the business of selling real estate for the purchaser s own account, who by means of a voluntary transfer acquires a legal or equitable interest in a Lot, other than (i) a leasehold interest (including renewal options) of less than twenty (20) years, or (ii) as security for an obligation.

SECTION 18.  Reasonable Attorneys  Fees means attorneys  fees reasonably incurred without regard to any limitations on attorneys  fees which otherwise may be allowed by law.

SECTION 19.  Special Declarant Rights [No longer applicable]

SECTION 20.  Stormwater Permit shall mean the State Stormwater Permit No. SW8 060354MOD issued by the North Carolina Division of Water Quality (DWQ), Department of Environment and Natural Resources (DENR).

SECTION 21.1  Boatslip or Boat Slip shall mean a wet boatslip, which shall be a designated boatslip in the water adjacent to or in the area of the Marina.  All boat slips shall be a component of the Marina facility and subject to the Declaration, this Amendment and any rules and regulations promulgated and shall be shown diagrammatically on the Phase 4 Plats described herein or other plats designating Boat Slips or the Marina.

SECTION 22.2   Marina shall mean those certain improvements shown and depicted on the Phase 4 Plats described herein, including without limitation the Fixed Pier Easement, the Floating Dock Easement, the Docks and the Boatslips.

SECTION 23.3  Marina Member shall mean and refer to those persons entitled to membership in the Association as the owner of a Lot and as assignee of a Boatslip.

SECTION 1. Owner s Property Rights and Easement of Enjoyment.  Every Owner shall have and is hereby granted a right and easement of enjoyment in and to the Common Elements, if any, which shall be appurtenant to and shall pass with the title to every Lot, subject to the following provisions:

(a) The Association may make and amend reasonable rules and regulations governing use of the Common Elements by the Owners.

(b) The Association may grant a security interest in or convey the Common Elements, or dedicate or transfer all or part of the Common Elements, to any public agency, authority or utility for such purposes and subject to such conditions as may be agreed to by at least eighty percent (80%) of the Members, excluding the Developer, provided, however, that the Association may, without the consent of the Owners, grant easements, leases, licenses and concessions through or over the Common Elements.  No conveyance or encumbrance of Common Elements shall deprive any Lot of its rights of access or support.

 (c) [No longer applicable].

SECTION 2. Easements in Favor of Declarant and the Association.  The following easements are reserved to Declarant and the Association, their agents, contractors, employees, successors and assigns:

(a) easements as necessary in the lands constituting the Common Elements and the front fifteen feet (15 ) and side five feet (5 ) and the rear ten feet (10 ) of each Lot for the installation and maintenance of utilities and drainage facilities, including the right to go upon the ground with men and equipment to erect, maintain, inspect, repair and use electric and telephone lines, wires, cables, conduits, sewers, water mains and other suitable equipment for the conveyance and use of electricity, telephone equipment, gas, sewer, water or other public conveniences or utilities on, in or over each Lot and such other areas as are shown on the plat of the Property or any Additional Property recorded or to be recorded in the Office of the Register of Deeds of the county where the Planned Community is located, the right to cut drain ways, swales and ditches for surface water whenever such action may appear to the Developer or the Association to be necessary in order to maintain reasonable standards of health, safety and appearance, the right to cut any trees, bushes or shrubbery, the right to make any grading of the soil, or to take any other similar action reasonably necessary to provide economical and safe utility installation and to maintain reasonable standards of health, safety and appearance, and the right to locate fences, wells, pumping stations and tanks within residential areas, or upon any Lot with the permission of the Owner of such Lot.  No structures or plantings or other material shall be placed or permitted to remain upon such easement areas or other activities undertaken thereon which may damage or interfere with the installation or maintenance of utilities or other services, or which may retard, obstruct or reverse the flow of water or which may damage or interfere with established slope ratios or create erosion.  These easement areas (whether or not shown on the recorded plats for the Planned Community), but not the improvements within such areas, shall be maintained by the respective Owner except those for which a public authority or utility company is responsible;

(b) easements over all private streets, if any, access easements, and Common
Elements within the Planned Community as necessary to provide access, ingress and egress to, and the installation of, utilities for any Additional Property;

(c) an easement of unobstructed access over, on, upon, through, around and across each Lot and the Limited Common Elements located thereon, if any, at all reasonable times to perform any maintenance and repair to the Lot and/or Limited Common Elements required or authorized by this Declaration; and

(d) all easements shown on the Plat.

 SECTION 3.  Other Easements.  The following additional easements are granted by Declarant:

(a) an easement to all police, fire protection, ambulance and all similar persons, companies or agencies performing emergency services, to enter upon all Lots and Common Elements in the performance of their duties;

(b) in case of any emergency originating in or threatening any Lot or Common Elements, regardless of whether any Lot Owner is present at the time of such emergency, the Association, or any other person authorized by it, shall have the immediate right to enter any Lot for the purpose of remedying or abating the causes of such emergency and making any other necessary repairs not performed by the Lot Owners; and

(c) the Association is granted an easement over each Lot for the purposes of providing Lot maintenance as contemplated by Article III, Section 5, hereof or when an Owner fails to provide maintenance and upkeep in accordance with this Declaration.

SECTION 4.  Nature of Easements.  All easements and rights described herein are perpetual easements appurtenant, running with the land, and shall inure to the benefit of and be binding on the Declarant and the Association, their successors and assigns, and any Owner, purchaser, mortgagee and other person having an interest in the Planned Community, or any part or portion thereof, regardless of whether or not reference is made in the respective deeds of conveyance, or in any mortgage or trust deed or other evidence of obligation, to the easements and rights described in this Declaration.

SECTION 1.  Formation of Association.  The Association shall be incorporated no later than the date the first Lot in the Planned Community is conveyed.  The Association is a nonprofit corporation organized pursuant to the Nonprofit Corporation Act of the State of North Carolina for the purpose of establishing an association for the Owners of Lots to operate and maintain the Common Elements and any Limited Common Elements in accordance with this Declaration, its Charter and Bylaws.  The Association shall be empowered to perform and/or exercise those powers set forth in the Act as it may be amended from time to time, in addition to any powers and authority otherwise granted to it.

SECTION 2.  Membership.  Every Lot Owner shall be a Member of the Association.  Membership shall not be separated from Lot ownership.

SECTION 3.  Voting Rights.  The Association shall have two (2) classes of voting Membership:

Class A.  Class A Members shall be all Owners, with the exception of the Declarant, and shall be entitled to one (1) vote for each Lot owned.  When more than one person holds an interest in any Lot, all such persons shall be Members.

 

The vote for such Lot shall be exercised as they determine, but in no event shall more than one (1) vote be cast with respect to any Lot.  Fractional voting with respect to any Lot is prohibited.

Class B.  [No longer applicable]

SECTION 4.  Governmental Permits.  After completion of construction of any facilities required to be constructed by Declarant pursuant to permits, agreements and easements for the Planned Community, all duties, obligations, rights and privileges of the Declarant under any water, sewer, stormwater and utility agreements, easements and permits for the Planned Community with municipal or governmental agencies or public or private utility companies, shall be the duties, rights, obligations, privileges and the responsibility of the Association, notwithstanding that such agreements, easements or permits have not been assigned or the responsibilities thereunder specifically assumed by the Association.  There are additional provisions made in this Declaration concerning stormwater facilities and the Stormwater Permit.

SECTION 5.  Common Elements.  The Association shall, at its sole cost and expense, be responsible for the operation and maintenance of each Common Element within the Planned Community from the date of completion of its construction or improvement by the Developer, whether or not (i) such Common Element has actually been deeded to the Association, or (ii) any permit issued by a governmental agency to Declarant for the construction and operation of the Common Element has been transferred from the Declarant to the Association or assumed by the Association.  If the Declarant is required by any government agency to provide any operation or maintenance activities to a Common Element for which the Association is liable to perform such operation and maintenance pursuant to this section, then the Association agrees to reimburse the Declarant the cost of such operation and maintenance within thirty (30) days after Declarant renders a bill to the Association therefore.  The Association agrees to levy a Special Assessment to cover the amount of such bill if it does not have other sufficient funds available.  Declarant shall be entitled to specific performance to require the Association to levy and collect such Special Assessment.

The Association may, in its discretion, cause a landscaping service or other lawn care maintenance company to provide lawn care services to each Lot, including mowing the front and side yards and trimming and bedding of shrubs or bushes which are not in fenced backyard areas, or which are visible from any street within the Planned Community.  Notwithstanding the foregoing, it shall be the continuing responsibility of the Owner of each Lot to assure that the Lot is mowed regularly, including the area between the lot line and the edge of the paved street, and to maintain in a neat condition all landscaping and plant materials contained within their respective fenced backyard areas or other inaccessible areas, if any.  Additionally, each Owner shall keep the Lot clear of any unsightly objects, and in the event that the Owner of any Lot within the Planned Community breaches this restriction, the Declarant and the Association reserve the right, and an easement, to enter upon the Lot to take such action as is necessary to clean up the Lot and remove unsightly structures and objects at the Owner s expense as provided herein.  Where Lots border on or contain ditches, drainage canals or swales, ponds or detention/retention ponds, the Owner of each Lot shall maintain that area, including the slopes, down to the edge of the water in a neat well kempt condition.  Washouts or erosions on the Lots adjoining ditch banks, channels, ponds, and swales shall be properly tended to by the respective Lot Owner.  Notwithstanding the foregoing, no Lot Owner may do anything, or as the case may be, neglect to take any action, which may cause any modification of the storm water management system constructed in the Planned Community.  This obligation and right may be enforced by the Association or any Owner as provided in Article VIII herein.

SECTION 6.  Limited Common Elements.  Any fencing constructed along the perimeter of a Lot by the Declarant or a Builder acquiring an unimproved Lot from Declarant shall be deemed Limited Common Elements appurtenant to such Lot.  Maintenance and repair of such fencing shall be the responsibility of the Association.  The expenses of such maintenance and repair shall be paid by Lot Owner for such repairs or maintenance peculiar to the fencing located on a particular Lot or Lots and the expenses of any repairs or maintenance necessitated by the actions of a Lot Owner shall be the responsibility of that Lot Owner.

SECTION 7.  Insurance.  The Board of Directors on behalf of the Association, as a Common Expense, may at all times keep the Common Elements and other assets of the Association, if any, insured against loss or damage by fire or other hazards and such other risks, including public liability insurance, upon such terms and for such amounts as may be reasonably necessary from time to time to protect such property, which insurance shall be payable in case of loss to the Association for all Members.  The Association shall have the sole authority to deal with the insurer in the settlement of claims.  In no event shall the insurance coverage obtained by the Association be brought into contribution with insurance purchased by Members or their mortgagees.  At a minimum, the Board of Directors shall maintain the insurance coverage required by the Act.

SECTION 8.  Architectural Review Committee.  The Board of Directors shall perform all duties of the Architectural Review Committee if no such committee is appointed by it.  Any Architectural Review Committee appointed by the Board of Directors shall consist of at least three (3) members, at least two (2) of which shall be Lot Owners.

 

SECTION 1.  Creation of the Lien and Personal Obligation of Assessments.  Each Lot Owner covenants and agrees to pay to the Association the following assessments (collectively, the  Assessments ):

(a) Annual Assessments,

(b) Special Assessments,

(c) Insurance Assessments,

(d) Ad Valorem Tax Assessments, and

(e) Working Capital Assessments. [No longer applicable]

The Assessments, together with interest, costs and reasonable attorneys  fees, shall be a charge on the land and shall be a continuing lien upon the respective Lot against which the Assessments are made.  Each such Assessment, together with interest, costs and reasonable attorneys  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.  Assessments shall not be due and payable from approved builders who purchase Lot(s) for the purpose of constructing residence(s) on a Lot(s) for a period of one year from the date of the builder s purchase of the Lot or the builder s sale of the Lot, whichever date arrives first.  The personal obligation for delinquent Assessments shall not pass to the Owner s successors in title unless expressly assumed by them.

SECTION 2.  Purpose of Annual Assessments.  The Annual Assessments levied by the Association shall be used exclusively to promote the recreation, health, safety and welfare of the Owners and residents of the Planned Community and for the maintenance, repair and replacement of the Common Elements and any Limited Common Elements.  The funds arising from said assessments or charges may be used for any or all of the following purposes: operations, maintenance and improvement of the Common Elements, and any Limited Common Elements, including payment of utilities, enforcing this Declaration, paying taxes, insurance premiums, legal and accounting fees and governmental charges; paying the cost of any lawn maintenance provided by the Declaration in accordance with Article III, Section 5, hereof; establishing working capital; paying dues and assessments to any organization or Master Association of which the Association is a member; and, in addition, doing any other things necessary or desirable in the opinion of the Association to keep the Common Elements and Limited Common Elements in good operating order and repair.

SECTION 3.  Annual Assessments.  The Board of Directors shall adopt a proposed budget for the Association at least annually.  Within thirty (30) days after adoption of the proposed budget for the Association, the Board of Directors shall provide to all of the Lot Owners a summary of the budget and notice of a meeting to consider its ratification, including a statement that the budget may be ratified without a quorum.  The Board of Directors shall set a date for a meeting of the Lot Owners to consider ratification of the budget, such meeting to be held not less than ten (10) days nor more than sixty (60) days after mailing of the summary and notice.  The budget is ratified unless at the meeting a majority of all of the Lot Owners in the Association rejects the budget.  In the event the proposed budget is rejected, the periodic budget last ratified by the Lot Owners shall be continued until such time as the Lot Owners ratify a subsequent budget proposed by the Board of Directors.  The Annual Assessment for each Lot shall be established based on the annual budget thus adopted; provided, however, that the first Annual Assessment shall be set by the Declarant prior to the conveyance of the first Lot to an Owner.  The due date for payment shall be established by the Board of Directors.  The Board of Directors shall have the authority to require the Assessments to be paid in periodic installments.  The Association shall, upon demand, and for a reasonable charge, furnish a certificate signed by an officer of the Association setting forth whether the Assessments on a specified Lot have been paid.

SECTION 4.  Special Assessments.  In addition to the Annual Assessments authorized above, the Association may levy, in any assessment year, a Special Assessment applicable to the year only for the following purposes:

(a) To defray, in whole or in part, the cost of any construction, reconstruction, repair or replacement of a capital improvement upon the Common Elements and any Limited Common Elements, including fixtures and personal property related thereto, provided that any such Special Assessment shall have the assent of two-thirds (2/3) of the Members of each class who are voting in person or by proxy at a meeting duly called for this purpose.  Written notice of any meeting of Owners called for the purpose of approving such Special Assessment shall be sent to all Members not less than ten (10) days nor more than sixty (60) days in advance of the meeting.

 

(b) Without a vote of the Members, to provide funds to reimburse the Declarant as provided for in Article III, Section 5, hereof.

SECTION 5.  Insurance Assessments.  All premiums on insurance policies purchased by the Board of Directors or its designee and any deductibles payable by the Association upon loss shall be a Common Expense, and the Association may at any time levy against the Owners equally an  Insurance Assessment,  in addition to the Annual Assessments, which shall be in an amount sufficient to pay the cost of all such deductibles and insurance premiums not included as a component of the Annual Assessment.

SECTION 6.  Ad Valorem Tax Assessments.  All ad valorem taxes levied against the Common Elements, if any, shall be a common expense, and the Association may at any time levy against the Owners equally an  Ad Valorem Tax Assessment,  in addition to the Annual Assessments, which shall be in an amount sufficient to pay ad valorem taxes not included as a component of the Annual Assessment.

SECTION 7.  Working Capital Assessments.  [No longer applicable]

SECTION 8.  Rate of Assessment.  The Association may differentiate in the amount of Assessments charged when a reasonable basis for distinction exists, such as between vacant Lots of record and Lots of record with completed dwellings for which certificates of occupancy have been issued by the appropriate governmental authority, or when any other substantial difference as a ground of distinction exists between Lots.  However, Assessments must be fixed at a uniform rate for all Lots similarly situated.

SECTION 9.  Commencement of Assessments.  Assessments for each Lot shall commence upon the date of acceptance by an Owner of a deed from Declarant except for the builder exception set forth in Section 1 above.

SECTION 10.  Effect of Nonpayment of Assessments and Remedies of the Association.  Any Assessment or installment thereof not paid within thirty (30) days after the due date shall bear interest from the due date at the highest rate allowable by law.  The Association may bring an action at law against the Owner personally obligated to pay the same, or foreclose the lien against the Owner s Lot.  No Owner may waive or otherwise escape liability for the Assessments provided for herein by non-use of the Common Elements or abandonment of his Lot.  All unpaid installment payments of Assessments shall become immediately due and payable if an Owner fails to pay any installment within the time permitted.  The Association may also establish and collect late fees for delinquent installments in accordance with North Carolina Law.

SECTION 11.  Lien for Assessments.  The Association may file a lien against a Lot when any Assessment levied against said Lot remains unpaid for a period of thirty (30) days or longer.

(a) The lien shall constitute a lien against the Lot when and after the claim of lien is filed of record in the Office of the Clerk of Superior Court of the county in which the Lot is located.  The Association may foreclose the claim of lien in like manner as a mortgage on real estate under power of sale under Article 2A of Chapter 45 of the General Statutes.  Fees, charges, late charges, fines, interest, and other charges imposed pursuant to Sections 47F-3-102, 47F-3-107, 47F-3-107.1 and 47F-3-115 of the Act are enforceable as Assessments.

 

(b) The lien under this section shall be prior to all liens and encumbrances on a Lot except: (i) liens and encumbrances (specifically including, but not limited to, a mortgage or deed of trust on the Lot) recorded before the docketing of the claim of lien in the Office of the Clerk of Superior Court, and (ii) liens for real estate taxes and other governmental assessments and charges against the Lot.

(c) The lien for unpaid assessments is extinguished unless proceedings to enforce the lien are instituted within three (3) years after the docketing of the claim of lien in the Office of the Clerk of Superior Court.

 

(d) Any judgment, decree or order in any action brought under this section shall include costs and reasonable attorneys  fees for the prevailing party.

(e) Where the holder of a first mortgage or deed of trust of record, or other purchaser of a Lot obtains title to the Lot as a result of foreclosure of a first mortgage or first deed of trust, such purchaser and its heirs, successors and assigns shall not be liable for the Assessments against the Lot which became due prior to the acquisition of title to the Lot by such purchaser.  The unpaid Assessments shall be deemed to be Common Expenses collectible from all of the Lot Owners including such purchaser, its heirs, successors and assigns.

(f) A claim of lien shall set forth the name and address of the Association, the
name of the record Owner of the Lot at the time the claim of lien is filed, a description of the Lot, and the amount of the lien claimed.

The Declarant shall have, and there is hereby reserved to the Declarant, the Special Declarant Rights as herein defined and the following rights, powers and privileges which shall be in addition to the Special Declarant Rights and any other rights, powers and privileges reserved to the Declarant herein:

 

SECTION 1.  The Architectural Review Committee/Board of Directors.  All duties and responsibilities conferred upon the Architectural Review Committee by this Declaration or the Bylaws of the Association shall be exercised and performed by the Declarant or its designee, so long as Declarant shall own any Lot within the Property or any Additional Property.  The Declarant is entitled during the Declarant Control Period to appoint and remove the officers and members of the Board of Directors.

 

SECTION 2.  Plan of Planned Community.  The right to change, alter or re-designate the allocated planned, platted or recorded use or designation of any of the lands constituting the Planned Community including, but not limited to, the right to change, alter or re-designate road, utility and drainage facilities and easements and to change, alter or re-designate such other present and proposed amenities, Common Elements, or facilities as may in the sole judgment and discretion of Declarant be necessary or desirable.  The Declarant hereby expressly reserves unto itself, its successors and assigns, the right to re-plat any one (1) or more Lots shown on the plat of any subdivision of the Property or Additional Property in order to create one or more modified Lots; to further subdivide tracts or Lots shown on any such subdivision plat into two (2) or more Lots; to recombine one (1) or more tracts or Lots or a tract and Lots to create a larger tract or Lot (any Lot resulting from such recombination shall be treated as one Lot for purposes of Assessments); to eliminate from this Declaration or any plats of the Planned Community Lots that are not otherwise buildable or are needed or desired by Declarant for access or are needed or desired by Declarant for use as public or private roads or access areas, whether serving the Planned Community or other property owned by the Declarant or others, or which are needed for the installation of utilities, Common Elements or amenities; and to take such steps as are reasonably necessary to make such re-platted Lots or tracts suitable and fit as a building site, access area, roadway or Common Elements.

SECTION 3.  Amendment of Declaration by the Declarant.   This Declaration may be amended without Member approval by the Declarant, or the Board of the Association, as the case may be, as follows:

(a) In any respect, prior to the sale of the first Lot.

(b) To the extent this Declaration applies to Additional Property.

(c) To correct any obvious error or inconsistency in drafting, typing or reproduction.

(d) To qualify the Association or the Property and Additional Property, or any portion thereof, for tax-exempt status.

(e) To incorporate or reflect any platting change as permitted by this article or otherwise permitted herein.

(f) To conform this Declaration to the requirements of any law or governmental agency having legal jurisdiction over the Property or any Additional Property or to qualify the Property or any Additional Property or any Lots and improvements thereon for mortgage or improvement loans made, insured or guaranteed by a governmental agency or to comply with the requirements of law or regulations of any corporation or agency belonging to, sponsored by, or under the substantial control of the United States Government or the State of North Carolina, regarding purchase or sale of such Lots and improvements, or mortgage interests therein, as well as any other law or regulation relating to the control of property, including, without limitation, ecological controls, construction of standards, aesthetics, and matters affecting the public health, safety and general welfare.  A letter from an official of any such corporation or agency, including, without limitation, the Department of Veterans Affairs, U.S. Department of Housing and Urban Development, the Federal Home Loan Mortgage Corporation, Government National Mortgage Corporation or the Federal National Mortgage Association, requesting or suggesting an amendment necessary to comply with the requirements of such corporation or agency shall be sufficient evidence of the approval of such corporation or agency, provided that the changes made substantially conform to such request or suggestion.  Notwithstanding anything else herein to the contrary, only the Declarant, during the Declarant Control Period, shall be entitled to amend this Declaration pursuant to this section.

SECTION 4.  Annexation of Additional Property.  Declarant may annex to and make a part of the Planned Community any other real property which Declarant now owns or which Declarant may hereafter acquire or develop (the  Additional Property ).  Annexation of Additional Property to the Planned Community shall require the assent of sixty-seven percent (67%) of the Class A Members who are voting in person or by proxy at a meeting called for this purpose; provided, however, Additional Property may be annexed to the Planned Community without the assent of the Members so long as the Additional Property is developed in accordance with the same general scheme as the other portions of the Planned Community. Nothing herein shall require the Developer to annex any lands to the Planned Community.

SECTION 1.  Approval of Plans for Building and Site Improvements.  No dwelling, wall, fence or other structure shall be commenced, erected or maintained upon any Lot, nor shall any exterior addition to or change in or alteration therein (including painting or repainting of exterior surfaces) be made until the plans and specifications showing the nature, kind, shape, heights, materials, colors and location of the same shall have been submitted to and approved in writing as to harmony of external design and location in relation to surrounding structures and topography by the Architectural Review Committee.  If the Architectural Review Committee fails to approve or disapprove such design and location within thirty (30) days after said plans and specifications have been submitted to it, approval will not be required and this article will be deemed to have been fully complied with.  Refusal or approval of any such plans, location or specification may be based upon any ground, including purely aesthetic and environmental considerations, that in the sole and uncontrolled discretion of the Architectural Review Committee shall be deemed sufficient.  One copy of all plans and related data shall be furnished to the Architectural Review Committee for its records.  The Architectural Review Committee shall not be responsible for any structural or other defects in plans and specifications submitted to it or in any structure erected according to such plans and specifications.

SECTION 2.  Minimum Standards for Site Improvements.

(a) Each single-story dwelling shall have a minimum of 1,800 square feet of enclosed, heated dwelling area and each multi-story dwelling shall have a minimum of 2,050 square feet of enclosed, heated dwelling area at least 1,400 square feet of which shall be on the first floor of the dwelling; provided, however, the Architectural Review Committee may permit a dwelling to have less than the above-stated footage if the Committee, in its sole discretion, finds that the variance will not adversely impact property values within the Planned Community.  The term  enclosed, heated dwelling area  shall mean the total enclosed area within a dwelling which is heated by a common heating system; provided, however, that such term does not include garages, terraces, decks, open porches and like areas.

(b) Since the establishment of inflexible building setback lines for location of houses on Lots tends to force construction of houses directly to the side of other homes with detrimental effects on privacy, view, preservation of important trees and other vegetation, ecological and related considerations, no specific setback lines are established by this Declaration.  In order to assure, however, that the foregoing considerations are given maximum effect, the site and location of any house or dwelling or other structure upon any Lot shall be controlled by and must be approved absolutely by the Architectural Review Committee; provided, however, that no structure shall be constructed closer to a Lot line than is permitted by applicable governmental regulations.

 

(c) No clearing, maintenance or disturbance of the natural condition of a Lot may be undertaken until Owner or builder has received approval for such action from the Architectural Review Committee.

(d) The exterior of all dwellings and other structures must be completed within twelve (12) months after the construction of same shall have commenced, except where such completion is impossible or would result in great hardship to the Owner or builder, due to strikes, fires, national emergency, natural calamities, or the complexity of design and construction.

(e) All service utilities, fuel tanks and wood piles are to be enclosed within a wall or plant screen of a type and size approved by the Architectural Review Committee, so as to preclude the same from causing an unsightly view from any highway, street or way within the subdivision, or from any other residence within the subdivision.  All mail and newspaper boxes shall be uniform in design.  Design for mail and newspaper boxes shall be furnished by the Architectural Review Committee.  Fences shall be permitted on any Lot; provided, however, that the design, placement and materials of any fence must be approved by the Architectural Review Committee prior to commencement of construction of same.  Clothes lines are not permitted on any Lot.

(f) Off-street parking for not less than two (2) passenger automobiles must be provided on each Lot prior to the occupancy of any dwelling constructed on said Lot which parking areas and the driveways thereto shall be constructed of concrete, brick, asphalt, turf stone or any other material approved by the Architectural Review Committee.

(g) All light bulbs or other lights installed in any fixture located on the exterior of any building or any Lot for the purpose of illumination shall be clear, white or non-frost lights or bulbs.

(h) All roofing products shall be natural wood shakes, asphalt shingles (30 year or better), slate or standing seam metal.

(i) Exterior siding materials shall be brick, natural wood, Hardiplank and/or vinyl or beaded vinyl4.

SECTION 3.  Use Restrictions.

(a) Land Use and Building Type.  No Lot shall be used for any purpose except for residential purposes, subject, however, to the rights of the Declarant contained herein.  All numbered Lots are restricted for construction of one single-family dwelling, plus a detached garage, if there is not one attached to the residence, and such other accessory buildings as may be approved by the Architectural Review Committee.

(b) Nuisances.  No noxious or offensive activity shall be carried on upon any Lot, nor shall anything be done thereon which may be or may become an annoyance or nuisance to the neighborhood.  There shall not be maintained any plants or animals, nor device or thing of any sort whose normal activities or existence are in any way noxious, dangerous, unsightly, unpleasant or other nature as may diminish or destroy the enjoyment of other Lots by the Owners thereof.  It shall be the responsibility of each Owner to prevent the development of any unclean, unsightly or unkempt condition of buildings or grounds on the Owner s Lot which would tend to decrease the beauty of the neighborhood as a whole or the specific area.

(c) Temporary Structures.  No structure of a temporary character shall be created or allowed to remain on any Lot, and no trailer, basement, tent, shack, garage, barn or other outbuilding shall be used on any Lot any time as a residence either temporarily or permanently.

(d) Vehicles/Boats.  No boat, motor boat (including  wave runners  and other
personal watercraft), camper, trailer, motor or mobile homes, tractor/trailer, or similar type vehicle shall be permitted to remain on any Lot or on any street at any time, without the written consent of the Association.  No inoperable vehicle or vehicle without current registration and insurance will be permitted on any Lot, street or Common Element.  The Association shall have the right to have all such vehicles towed away at the owner s expense.  No repairs to any vehicle may be made on streets or in driveways, but only in garages or other areas and not visible from the street.

 

(e) Animals.  No animals, livestock or poultry of any kind shall be kept or maintained on any Lot or in any dwelling except that cats, dogs or other household pets may be kept or maintained provided that they are not kept or maintained for commercial purposes and provided further that they are not allowed to run free, bark excessively, and are at all times kept properly leashed or under the control of their owner, and do not become a nuisance.

(f) Statuary, TV Satellite Dishes and Outside Antennas; Flags.  No yard statuary or TV satellite signal receiving dishes are permitted on any Lot and no outside radio or television antennas shall be erected on any Lot or dwelling unit unless and until permission for the same has been granted by the Architectural Review Committee, provided, however, that satellite dishes not over 18  in diameter which cannot be seen from the street and are integrated within a dwelling on the Lot and the surrounding landscape are permitted.  With regard to the regulation of flags, no outdoor flag may be placed on any Lot or dwelling unit unless and until permission for the same has been granted by the Architectural Review Committee.  Notwithstanding any other provision herein, the United States Flag and/or the North Carolina flag having the maximum dimensions of four feet by six feet (4  x 6 ) may be displayed on an Owner s own Lot.  Any flags will be displayed in accordance with traditional rules and patriotic customs set forth in 4 U.S.C.  5-10, as amended, governing the display and use of the flag of the United States.

(g) Construction in Common Elements.  No Person (with the exception of Declarant in connection with the exercise of its Special Declarant Rights) shall undertake, cause, or allow any alteration or construction in or upon any portion of the Common Elements except at the direction or with the express written consent of the Association.

(h) Signs.  No signs (including  for sale  or  for rent  signs) shall be permitted on any Lot in the Common Elements without permission of the Board of Directors.  With regard to the regulation of political signs, the Association, pursuant to the provisions of the Act, may (i) prohibit the display of political signs on a Lot earlier than forty-five (45) days before the day of an election and later than seven (7) days after an election day, and/or (ii) regulate the size and number of political signs that may be placed on a Lot (but only to the extent the Association s regulation is no more restrictive than any applicable city, town or county ordinance that regulates the size and number of political signs on residential property).  If the local government in which the applicable property is located does not regulate the size and number of political signs on residential property, the Association shall permit at least one (1) political sign with the maximum dimensions of 24 inches by 24 inches (24  x 24 ) on a Lot.  For the purposes of this paragraph, a  political sign  means a sign that attempts to influence the outcome of an election, including supporting or opposing an issue on the election ballet.

 

(i)      No Lot shall be subdivided, or its boundary lines changed except with the prior written
consent of the Board of Directors.

SECTION 4.  Maintenance.  Each Lot Owner shall obtain prior approval of the Architectural Review Committee of the proposed species of grass sod to be used on the Owner s Lot.  The Owner shall sod all portions of the Lot other than areas upon which the dwelling, outbuildings, driveway, sidewalks, wetland areas as shown on the Plat and approved landscaped beds at the sole expense of the Owner.  Each Lot Owner shall keep his Lot free from weeds, underbrush or refuse piles, or unsightly growth or objects.  All structures shall be kept neat and in good condition and repair. All shrubs, trees, grass and plantings shall be kept neatly trimmed and properly cultivated.

 

SECTION 1.  Stormwater Permit.  [Not applicable]

SECTION 2.  Stormwater Facilities Operation and Maintenance.  Any stormwater infiltration basins and related facilities for the Planned Community which have or are to be constructed by or on behalf of Declarant constitute Common Elements and, subject only to the provisions of Section 3 of this Article VII, the Association, at its sole cost and expense, is responsible for the operation and maintenance of such facilities.  

SECTION 3.  Damage to Stormwater Facilities.  Lot Owners shall be responsible for damages to such stormwater facilities caused by construction of buildings or other activities upon the Owner s Lot.  Each Owner shall, within thirty (30) days after receipt of notice of damage to stormwater facilities, repair the damage at the Owner s sole cost and expense to return them to the state required by the stormwater plans and specifications for the Planned Community.  If the Lot Owner fails to do so within said thirty (30) day period, the Association shall perform the work and the cost of the work shall be added to the Annual Assessment due from the Lot Owner.

SECTION 4.  Enforcement of Stormwater Management Regulations.  The following covenants are intended to ensure ongoing compliance with the Stormwater Permit.  The State of North Carolina is made a beneficiary of these covenants to the extent necessary to maintain compliance with the Stormwater Permit.  These covenants are to run with the land and be binding on all persons and parties claiming under them.  The covenants pertaining to stormwater may not be altered or rescinded without the express written consent of the DWQ.  Alteration of the drainage as shown on the approved plan may not take place without the concurrence of the DWQ.

 The maximum allowable built-upon area per Lot is:
* Lots 6 - 14 3,844 square feet
* Lot 16 3,844 square feet
* Lot 18 3,844 square feet
* Lots 31 - Lot 80 3,844 square feet 
* Lot 3272 4,500 square feet
* Lot 3275 4,500 square feet
* Lot 3276 4,500 square feet
* Lot 3278 - through Lot 3280  4,500 square feet
* Lot 3287 4,500 square feet
* Lots 3302   3305 4,500 square feet
* Lots 3310   3314 4,500 square feet
* Lot 3316 4,500 square feet
* Lot 3317 4,500 square feet
* Lot 3324 4,500 square feet
* All remaining Lots in Ph 3 Sect 2C  3,768 square feet 

This allotted amount includes any build-upon area constructed within the Lot property boundaries, and that portion of the right-of-way between the front Lot line and the edge of the pavement.  The build-upon area includes, but is not limited to, structures, asphalt, concrete, gravel, brick, stone, slate, coquina and parking areas, but does not include raised, open wood decking or the water surface of swimming pools.  All runoff from the built-upon areas on the Lot must drain into the permitted system.  This may be accomplished through providing roof drain gutters which drain to the street, grading the Lot to drain toward the street, or grading perimeter swales to collect lot runoff and directing them into the stormwater system or into the street.  Lots that will naturally drain into the system are not required to provide these additional measures.  The provisions of the Stormwater Permit are incorporated herein by reference and each Owner is required to refrain from taking any action which would be in violation of the Stormwater Permit.

SECTION 1.  Lots Subject to Declaration.  The covenants and restrictions contained in this Declaration are for the purpose of protecting the value and desirability of the Planned Community and the Lots.  All present and future Owners, tenants and occupants of Lots, and their guests or invitees, shall be subject to and shall comply with the provisions of the Declaration, as the Declaration may be amended from time to time.  The acceptance of a deed of conveyance or the entering into of a lease or the entering into occupancy of any Lot shall constitute an agreement that the provisions of the Declaration are accepted and ratified by such Owner, tenant or occupant.  The covenants and restrictions of this Declaration shall run with and bind the land and shall bind any person having at any time any interest or estate in any Lot, their heirs, successors and assigns, as though such provisions were made a part of each and every deed of conveyance or lease, for a term of twenty (20) years from the date this Declaration is recorded, after which time they shall be automatically extended for successive periods of ten (10) years, unless altered or amended as set forth in Section 5 of Article IX hereof.

SECTION 2.  Enforcement and Remedies.  The covenants and restrictions of this Declaration shall inure to the benefit of and be enforceable (by proceedings at law or in equity) by the Association, or the Owner of any Lot, their respective legal representatives, heirs, successors and assigns.  The Board of Directors shall be entitled to enforce its Articles of Incorporation, Bylaws and Rules and Regulations.  In addition to the remedies otherwise provided for herein concerning the collection of Assessments, the following remedies shall be available:

 

(a) Association to Remedy Violation.  
* thirty (30) days  notice
* opportunity to be heard
* enter upon the Lot and remedy the violation or perform the required maintenance 
* charge back Owner, including collection costs and reasonable attorneys  fees

(b) Fines.  Board can establish fine schedule

 

(c) Suspension of Services and Privileges.  
*  Notice/opportunity to be heard
*  suspend all services and privileges provided by the Association to an Owner (other than rights of access to Lots) 
* for any period during which any Assessments against the Owner s lot remain unpaid for at least thirty (30) days or for any period that the Owner or the Owner s Lot is otherwise in violation of this Declaration or the Association s Charter, Bylaws or Rules and Regulations.

SECTION 3.  Miscellaneous.  Failure by the Association or by an Owner to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter.  The remedies provided herein are cumulative and are in addition to any other remedies provided by law.

 

Maintaining Wetlands. The areas shown as wetlands on that plat prepared by Cape Fear Engineering, Inc. dated February 15, 2008 entitled  Hawkeswater at the River Phase 1-A  recorded in Map Book 48 at Page 27 of the Brunswick County Register of Deeds shall be maintained in perpetuity in their natural condition.  No person or entity shall fill, grade, excavate, or perform any other land disturbing activities; nor cut, mow, burn, remove or harm any vegetation; nor construct any structures, nor allow animal grazing or watering or any other agricultural use on such wetlands.  This covenant is intended to ensure continued compliance with the authorization issued by the United States of America, U.S. Army Corps of Engineers, Wilmington District, and therefore may be enforced by the United States of America.  This covenant is to run with the land, and shall be binding on the Declarant and all parties claiming under it.

 

SECTION 1.  Rights of Institutional Note Holders.  Any institutional holder of a first lien on a Lot will, upon request, be entitled to (a) inspect the books and records of the Association during normal business hours, (b) receive an annual audited financial statement of the Association within ninety (90) days following the end of its fiscal year, (c) receive written notice of all meetings of the Association and right to designate a representative to attend all such meetings, (d) receive written notice of any condemnation or casualty loss that affects either a material portion of the Planned Community or the property securing its loan, (e) receive written notice of any sixty (60) day delinquency in the payment of Assessments or charges owed by any Owner of any property which is security for the loan, (f) receive written notice of a lapse, cancellation, or material modification of any insurance policy or fidelity bond maintained by the Association, (g) receive written notice of any proposed action that requires the consent of a specified percentage of mortgage holders, and (h) be furnished with a copy of any master insurance policy.

SECTION 2.  Utility Service.  Declarant reserves the right to subject the Property to contracts for the installation of utilities, cable TV and street lighting, which may require an initial payment and/or a continuing monthly payment by the Owner of each Lot.  Each Lot Owner will be required to pay for any water connections, sewer connections, street lighting, impact fees or any other charges imposed by any entity furnishing water, sewer, street lighting or other utility service to the Lots and Common Elements.  In the alternative, the Developer may collect such connection, impact and other fees, and charges directly from the Lot Owners.  All Lot Owners shall be required, for household purposes, to use water and sewer supplied by the companies/governmental units servicing the Planned Community.  Separate water systems for outside irrigation and other outdoor uses shall not be permitted without the consent of the Architectural Review Committee.

SECTION 3.  Severability.  Invalidation of any one of these covenants or restrictions by judgment or court order shall in no way affect any other provisions which shall remain in full force and effect.

SECTION 4.  Amendment of Declaration.  Except in cases of amendments that may be executed by the Declarant under this Declaration or by certain Lot Owners under the Act, this Declaration may be amended by affirmative vote or written agreement signed by Owners of Lots to which at least sixty-seven percent (67%) of the votes in the Association are allocated, or by the Declarant if necessary for the exercise of any Special Declarant Right or development or other right reserved to the Declarant herein.

SECTION 5.  FHA/VA Approval.  So long as there is Class B membership, annexation of Additional Properties, dedication of Common Elements and/or amendments to this Declaration must be approved by the Federal Housing Administration and/or the Department of Veterans Affairs, as the case may be, if either of those agencies has approved the making, insuring or guaranteeing of mortgage loans within the Planned Community.

SECTION 6.  North Carolina Planned Community Act.  It is the intent of the Declarant to comply with the requirements imposed on the Planned Community by the Act and to the extent any of the terms of this Declaration violate the Act, the terms of the Act shall control.

SECTION 7.  Joinder.  Cooperative Bank joins in the execution of this Declaration for the purpose of consenting to the terms and conditions contained herein, and for the additional purpose of subordinating, except as herein set forth, the Deed of Trust recorded in Book 2606, Page 37, and the Assignment of Leases and Rents recorded in Book 2606, Page 49, Deed of Trust recorded in Book 2606, Page 72, and the Assignment of Leases and Rents recorded in Book 2606, Page 92, Deed of Trust recorded in Book 2606, Page 106, and the Assignment of Leases and Rents recorded in Book 2606, Page 121, Deed of Trust recorded in Book 2605, Page 1340, and the Assignment of Leases and Rents recorded in Book 2605, Page 1361, all in the Brunswick County Registry, as the same may have been modified from time to time, to the provisions of this Declaration and by affixing its duly authorized signature hereto, does hereby specifically subordinate, except as herein set forth, said Deed of Trust recorded in Book 2606, Page 37, and Assignment of Leases and Rents recorded in Book 2606, Page 49, Deed of Trust recorded in Book 2606, Page 72, and the Assignment of Leases and Rents recorded in Book 2606, Page 92, Deed of Trust recorded in Book 2606, Page 106, and the Assignment of Leases and Rents recorded in Book 2606, Page 121, Deed of Trust recorded in Book 2605, Page 1340, and the Assignment of Leases and Rents recorded in Book 2605, Page 1361 to the terms of this Declaration.  Except for said subordination, the liens of said Deeds of Trust shall remain in full force and effect until released by Cooperative Bank by instrument duly recorded in the Brunswick County Registry.

 

SECTION 1.  Marina and Boatslips Easement.  Each Common Element located within the Phase 4 Property is burdened with an easement permitting any owner and Marina Member to come upon any Common Element and any area owned by the Association shown on the Phase 4 Plats and to use such property at reasonable times and in a reasonable manner in connection with their use of their Boatslip, including, recreation areas, bath facilities, parking areas, and areas necessary for access to the Boatslips, subject to the rules and regulations of the Association.  All owners of a Lot in the Planned Community shall have the obligation to obey all rules and regulations established from time to time by the Board of Directors.  For the purposes of this Amendment and the Declaration, the following parcels of land shall constitute the Common Elements located within the Phase 4 Property, all as more specifically shown and designated on the Phase 4 Plats:  (a)  TRACT 1 ;  (b)  20  UTILITY EASEMENT ;  (c)  10  LANDSCAPE BUFFER ;  (d)  20  STREET YARD BUFFER & UTILITY EASEMENT ; and  (e) the land underlying the private right-of-way  BENDING RIVER WAY .  Horton may convey to the Association at any time the Marina improvements and/or the Common Elements located within the Phase 4 Property.  Such conveyance shall be deemed to be accepted by the Association upon delivery of any of the Marina improvements or the Common Elements by a bill of sale or upon recordation with the Brunswick County Registry of a non-warranty deed conveying the interest in the real property, and the conveyed Marina improvements and Common Elements shall thereafter be maintained by the Association for the benefit of the Members of the Association and the Marina Members pursuant to the terms of the Declaration and this Amendment.

SECTION 2.  Boatslips To Be Assigned.  Horton proposes to construct or is in the process of constructing or has constructed a dock, pier or other watercraft or boat mooring facility containing Boatslips which may be individually assigned by Horton to a person or entity or to the Association by an instrument of assignment which shall be recorded in the Office of the Register of Deeds of Brunswick County.  The instrument of assignment may be included as part of the deed for a Lot in the Planned Community.  Notwithstanding that such assignment shall provide to the assignee the right to occupy a space at a dock, pier or other watercraft or boat mooring facility, such facility shall be and remain a Common Element of the Association and shall be maintained by the Association and subject to such rules and regulations as may be from time to time adopted for its use, including any surcharge imposed by the Association on such assignees.

There shall be a maximum of forty-two (42) Boatslips which shall be used by Marina Members for docking a watercraft owned by the Marina Member.  Two (2) Boatslips will at all times be owned by the Association and these two (2) Boatslips shall be utilized as a  day dock  or  temporary  short term docking facility available to all owners in the Planned Community.  The remaining forty (40) Boatslips may be assigned only to owners of Lots in the Planned Community.  The use of all Boatslips shall be subject to such rules and regulations as may from time to time be adopted by the Association for use.

Each assignment instrument shall clearly state that the Boatslip is  Restricted  as to ownership and use as provided for in this Amendment.  Any Boatslip may be subsequently assigned to an owner but may only be assigned to an owner of a Lot in the Planned Community.  Any such instrument of assignment shall clearly state the Lot owned by the assignee.  No Boatslip shall be transferred except by an instrument which shall be recorded in the Office of the Register of Deeds of Brunswick County.

In the event a person ceases to become an owner of a Lot by a conveyance of a Lot, then the conveyance of the last Lot owned shall serve to transfer all Boatslips of which he may be assignee at the time of the conveyance, notwithstanding any intentions to the contrary expressed in the conveyance.  However, an owner shall be able to transfer a Boatslip separately so long as the assignee also owns a Lot in the Planned Community.  Any attempted transfer of a Boatslip to a person who does not own a Lot in the Planned Community shall not transfer any rights to or ownership of said Boatslip.

The Marina Member may not rent or permit the use of a Boatslip to a non-owner, except together with and incident to the rental of his residential home situate upon a Lot in the Planned Community.  All leases of such residence and Boatslips shall provide a one (1) year minimum lease term and a copy of any rental management agreement and all leases shall be provided to the Association.  Except as specifically allowed by this paragraph, each Boatslip may be used by the Marina Member, his family and guests, only, and may not be rented, leased, loaned out, or used for any time period by a non-owner of a Lot in the Planned Community, subject to such additional rules and regulations as may be from time to time adopted for its use.  By his acceptance of an assignment of a Boatslip, the Marina Member empowers the Association or its designee, as his attorney in fact, to bring a proceeding in summary ejectment to remove any person who is in violation of the provisions of this Declaration, the By-Laws, or any rules and regulations adopted by the Board of Directors pursuant thereto.

At Horton s option, Horton shall be entitled to assign or transfer all rights and duties of Horton under any permit applicable to the Marina or that certain Submerged Land Easement of record at Book 3750 Page 59, Brunswick County Registry, to any person or entity, including, without limitation, the Association, whereupon Horton shall have no further rights, duties, obligations or liabilities thereunder.

 

SECTION 3.  Special Assessment Provisions for Marina Members.  The Association shall provide maintenance of the bulkhead, docks, piers, finger piers, walkways, pilings, and all other improvements associated with the Marina facility and the Boatslips.  The Board of Directors may establish dues, assessments or charges for Marina Members pursuant to Article IV, Section 8 of the Declaration.  All expenses of the Boatslips shall be, and for purposes of assessments, the common expense liability of the Boatslips shall be assessed against the Boatslips and are to be allocated equally among all Boatslips, including those owned by the Association.  Said assessments, dues and charges shall be established and used by the Board of Directors for the use, upkeep insurance and maintenance of the bulkhead, finger piers, pilings and all associated structures owned by the Association and part of the Boatslips or Marina facility.  All expenses related to the parking lot located on Phase 4 of the Planned Community shall not be included in those assessments specially allocated to the Marina Members.  The Association shall have all remedies available to it pursuant to Article IV of the Declaration with respect to the enforcement and nonpayment of any assessments for Marina Members.

Additionally, each Marina Member may be assessed in any calendar year a special assessment for the purpose of defraying in whole or in part, the costs of any insurance, construction, reconstruction, repair or replacement of capital equipment and/or improvements within the Boatslip or Marina facility, which assessment shall be made per Boatslip basis, including those owned by the Association.  No such assessment shall require prior Marina Member approval if such assessment is for insurance.  All other special assessments shall not require Marina Member approval, except that, if any such special assessment shall exceed the sum of $2,500.00 in any one (1) year, such assessment shall have the assent therefore voted by two-thirds of the Marina Members of the Association, in person or by proxy at a special or regular meeting called for said purpose.

The initial annual maintenance and insurance assessment per Boatslip shall be $600.00 per Boatslip for the year 2017.

SECTION 4.  Insurance.  A Marina Member, prior to the use of a Boatslip, shall obtain and thereafter maintain a liability insurance policy which insures against any liability arising out of the use, ownership, maintenance and control of any watercraft owned by an assignee, or arising from the Marina Member s possession and use, from or connected with any guests, visitors or others who may come onto the premises to visit the watercraft owner or boat, with limits of liability therefor of not less than $1,000,000 per occurrence, and property damage coverage of $300,000 which policy shall include an endorsement to cover liability of the Association to any person.  A copy of the insurance policy shall be provided to the Association upon issuance and each renewal.

SECTION 5.  Mortgage of Boatslips.  Any Marina Member may give a deed of trust or mortgage on a Boatslip without prior notice to or authorization by the Board of Directors of the Association; but, provided, however, that Marina Member giving a deed of trust or mortgage on a Boatslip, shall simultaneously with the recording thereof, record a Request for Notice as provided by law, providing that a foreclosing mortgagee shall provide notice of the institution of foreclosure proceedings to the Board of Directors of the Association.

SECTION 6.  Use Restrictions.  The following restrictions shall apply to the Boatslips, the Marina and the Common Elements shown on the Phase 4 Plats:

(a.) All Boatslips shall be utilized for non-commercial pleasure watercraft only which shall at all times be owned by the Marina Member or his assignee.  No commercial activity shall be undertaken by use of the Boatslips.

(b.) The type, size, and other matters relating to the watercraft may be regulated from time to time by the Association.  In the event of any dispute as to whether a particular watercraft is permitted to be moored in a Boatslip or otherwise operated within the Marina, the determination of the Association made in its sole discretion shall be dispositive.

(c.) No watercraft moored, stored or operated in a Boatslip and/or the Marina may be used as a live-aboard or as a year-round or seasonal residence.  No houseboat, floating home, house-like barge or seaplane shall be permitted within a Boatslip and/or the Marina.

(d.) A Boatslip shall not be used in a way that requires regular visits from the public or unreasonable levels of visits in general, or creates unreasonable utility burdens or trash.

 

(e.) Any watercraft moored in a Boatslip must fit within the boundaries of such Boatslip except that anchor extensions, bowsprits, booms, pulpits and other projections and overhangs from the bow of a watercraft may extend beyond the end of the Boatslip over the open water for a distance not to exceed ten percent (10%) of the length of the Boatslip.

(f.) Except during a period of temporary repairs not to exceed eight (8) days, any watercraft moored, stored or operated in a Boatslip and/or the Marina shall be fully operable, shall be safe and seaworthy, shall be equipped with all safety and other equipment required by federal, state and local laws and regulations, and shall comply with all license and registration requirements.  An agent of the Association may periodically inspect any watercraft moored, stored or operated within a Boatslip and/or the Marina for compliance with the requirements set forth in this Section 8, and may order the removal of any watercraft that is not safe and seaworthy, that is not equipped with all safety and other equipment required by federal, state and local laws and regulations, and that does not comply with all license and registration requirements.

(g.) Any watercraft moored, stored or operated within a Boatslip and/or the Marina must be equipped with a sanitary holding tank (if required by applicable law or regulation) and shall not discharge sewage, trash, petroleum products or other waste into the waters within or adjacent to the Marina or the Common Elements.

(h.) No improvements shall be constructed or placed within any Boatslip, the Marina or the Common Elements by any Owner other than the Declarant and/or the Association.

(i.) Any watercraft sunk within the Marina or adjacent waters shall be removed by the owner of the watercraft within twelve (12) hours of sinking, or the Association may cause the removal of the sunken watercraft at the expense of the owner of the watercraft.

(j.) No immoral, improper, offensive or unlawful use shall be made of any Boatslip, the Marina, the Common Elements or any part thereof, and all laws, zoning ordinances and regulations of all governmental authorities having jurisdiction of the Boatslips, the Marina and/or the Common Elements shall be observed.  No Marina Member or Owner shall permit or suffer anything to be done or kept in or on the Boatslips, the Marina or the Common Elements which will increase the rate of insurance on the Marina, the Common Elements and the Association, or which will obstruct or interfere with the rights of the other Marina Members or owners or annoy them by unreasonable noises, nor shall any Marina Member or owner undertake any use or practice which shall create and constitute a nuisance to any other Marina Members or owners or which interferes with the peaceful possession and proper use of the Boatslips, the Marina and/or the Common Elements.

 
EXHIBIT A

Description of the Additional Property6
*  Phase 2 Book 44, Pages 74 and 75 of the Brunswick County Register of Deeds
* Phase 3A Book 44, Pages 74 and 75 of the Brunswick County Register of Deeds
* Phase 1B Book 44, Pages 74 and 75 of the Brunswick County Register of Deeds
*  Phase 4 Lots 1 through 8 (inclusive), rights-of-way and utility easements, Map Cabinet 95 Page 29, Brunswick County Registry; and those two easements over the Brunswick River depicted as FIXED PIER EASEMENT and FLOATING DOCK EASEMENT by plat of survey entitled,  EASEMENT PLAT RIVER BEND HAWKESWATER AT THE RIVER PHASE 4,  of record at Map Cabinet 94 Page 36, Brunswick County Registry 

 

 

 

 

SUPPLEMENTAL DECLARATION FOR TOWNHOMES 

The definitions set forth the Master Declaration and in   47F-1-103 of the Planned Community Act shall apply to this First Supplemental Declaration and are incorporated herein, except that the terms listed below shall have the specific meanings stated:

Townhome Building  shall mean any building comprised of residences located upon Townhome Lots.

Townhome Common Elements  shall mean all property, and any improvements thereon, wherever located, owned or leased by the Association or subjected to an easement or license in favor of the Association for the common use and enjoyment of Owners of the Townhome Lots.  Townhome Common Elements shall include all water and sewer lines serving more than one Townhome Lot and located outside any public rights-of-way or utility easements.  Townhome Common Elements shall include any drainage easements, stormwater pipes, detention and retention facilities serving more than one Townhome Lot and not accepted by any governmental authority for maintenance.  Townhome Common Elements shall be designated as Limited Common Elements for the exclusive use of the Townhome Lots.

Townhome Expenses  shall mean expenditures made by or financial liabilities of the Association in connection with the maintenance of the Townhome Property, together with any allocations to reserves.

Townhome Lot  shall mean any separate parcel of land within the Townhome Community designated for construction and maintenance of a townhome residence and designated for separate ownership or occupancy and residential use.

 

2.1  Townhome Base Assessments.  All Townhome Expenses incurred, or anticipated to be incurred, by the Association for the exclusive benefit of the Owners of the Townhome Lots shall be shared among the Owners of all Townhome Lots as set forth in Section 2.4 below.  The Association shall levy a Townhome Base Assessment, at least annually, equally against each Townhome Lot as its share of the Townhome Expenses incurred for the exclusive benefit of the Owners of the Townhome Lots.

2.2  Townhome Special Assessments.  In addition to other authorized assessments, the Association may levy Townhome Special Assessments against each Townhome Lot to cover unbudgeted Townhome Expenses or Townhome Expenses in excess of those budgeted.  Any Townhome Special Assessment shall require the affirmative vote or written consent of a majority of the Board of Directors of the Association.  Townhome Special Assessments shall be payable in such manner and at such times as determined by the Board of Directors of the Association and may be payable in installments extending beyond the fiscal year in which the Townhome Special Assessment is approved.

2.3  Townhome Specific Assessments.  The Board of Directors of the Association shall have the power to levy Specific Assessments against a particular Townhome Lot as follows:

a.  to cover the costs, including overhead and administrative costs, of providing services to Townhome Lots upon request of an Owner pursuant to any menu of special services which the Association may offer; and

b.  to cover costs incurred in bringing the Townhome Lot into compliance with the Master Declaration, this First Supplemental Declaration, the Bylaws of the Association, or any amendments and supplements thereto, or costs incurred as a consequence of the conduct of the Owner or occupants of the Townhome Lot, their agents, contractors, employees, licensees, invitees, or guests; provided, the Board of Directors of the Association shall give the Townhome Lot Owner prior written notice and, if required by the Master Declaration, this First Supplemental Declaration, the Bylaws of the Association, or any amendments and supplements thereto, an opportunity for a hearing before levying any Specific Assessment under this subsection 2.3(b).

2.4  Authority to Assess Owners; Time of Payment.

The Association is hereby authorized to levy Townhome assessments as provided for in this Article and elsewhere in the Master Declaration.  The obligation to pay assessments shall commence as to each Townhome Lot on the first day of the month following the later of:  (a) the closing on the sale of a Townhome Lot to a person or entity other than Horton or  (b) the issuance of a certificate of occupancy for a residential dwelling on such Townhome Lot.  The first annual Townhome Base Assessment levied on each Townhome Lot shall be adjusted according to the number of months remaining in the fiscal year at the time assessments commence on the Townhome Lot.

Assessments shall be paid in such manner and on such dates as the Board of Directors of the Association may establish.  The Board of Directors of the Association may require advance payment of assessments at closing of the transfer of title to a Townhome Lot and impose special requirements for Owners of Townhome Lots with a history of delinquent payment.  If the Board of Directors of the Association so elects, assessments may be paid in two or more installments.  Unless the Board of Directors of the Association provides otherwise, the Townhome Base Assessment shall be due and payable in advance on the first day of each fiscal year.  If any Owner is delinquent in paying any assessments or other charges levied on his Townhome Lot, the Board of Directors of the Association may require the outstanding balance on all assessments to be paid in full immediately.

2.5  Liability for Assessments.

Each assessment levied by the Association, together with interest, late charges and the costs of collection thereof, including reasonable attorney s fees, shall be the personal obligation of all the Owners of each Townhome Lot.  The Association shall have the power to take whatever action is necessary, at law or in equity, to enforce this First Supplemental Declaration and to collect the assessment, interest, late charges and costs.  If the assessment remains unpaid for a period of thirty (30) days after the date of mailing of the notice that it is due, the Association may impose reasonable charges for late payment of assessments, not to exceed the greater of Twenty Dollars ($20.00) per month from the date of mailing of the notice or ten percent (10%) of any assessment installment unpaid, and the assessment, together with the late charges thereon and the costs of collection thereof (including reasonable attorney s fees) shall constitute a lien on the delinquent Townhome Lot when a claim of lien is filed by the Association against the Townhome Lot in the Office of the Clerk of Superior Court of Brunswick County.  The lien may be foreclosed by the Association as provided in   47F-3-116 of the Planned Community Act.

The failure of the of Board of Directors of the Association to fix assessment amounts or rates or to deliver or mail each Owner of a Townhome Lot an assessment notice shall not be deemed a waiver, modification or a release of any Owner from the obligation to pay assessments.  In such event, each Owner of a Townhome Lot shall continue to pay Townhome Base Assessments on the same basis as during the last year for which an assessment was made, if any, until a new assessment is levied, at which time the Association may retroactively assess any shortfalls in collections.

No Owner of a Townhome Lot may exempt himself from liability for assessments by non-use of Townhome Common Elements, abandonment of his or her Townhome Lot or any other means.  The obligation to pay assessments is a separate and independent covenant on the part of each Townhome Lot Owner.  No diminution or abatement of assessments or set-off shall be claimed or allowed for any alleged failure of the Association or Board of Directors of the Association to take some action or perform some function required of it, or for inconvenience or discomfort arising from the making of repairs or improvements, or from any other action of the Board of Directors of the Association.

The sale or transfer of any Townhome Lot shall not affect the assessment lien, or relieve such Townhome Lot from the lien for any subsequent assessments.  However, the sale or transfer of any Townhome Lot pursuant to foreclosure pursuant to first lien mortgage shall extinguish the lien as to any installments of such assessments due prior to the mortgagee s foreclosure, except as otherwise provided in this Section.  The subsequent Owner of the foreclosed Townhome Lot shall not be personally liable for assessments on such Townhome Lot due prior to such acquisition of title.  Such unpaid assessments shall be deemed to be Townhome Expenses collectible from Owners of all Townhome Lots subject to assessment under Section 2.4, including the subsequent Owner of the foreclosed Townhome Lot.

2.6  HVAC Systems.  All heating and air-conditioning systems (collectively, the  HVAC Systems ) located in the Townhome Common Elements which serving one or more, but less than all, of the Townhome Lots shall be considered Limited Common Elements.  The expenses of such maintenance and repair for the HVAC Systems serving particular Townhome Lot(s) shall be the responsibility of the Owner(s) of those Townhome Lot(s).

2.7  Exempt Property.

The following property shall be exempt from payment of Townhome Base Assessments, Townhome Specific Assessments, and Townhome Special Assessments:

a. all Townhome Common Elements;

 

b. any property dedicated to and accepted by any governmental authority or public utility; and

c. any and all property owned by Horton.

 

3.1  General.  All areas within the Townhome Property and all areas covered by easements or licenses owned or held by the Association shall be maintained to the standards stated in this First Supplemental Declaration, the Master Declaration, the Bylaws of the Association, and rules and regulations of the Association.  The Association and the individual Owners of the Townhome Lots shall be responsible for such maintenance, as provided in this Article III.

3.2  Association Maintenance Responsibility.7  The Association shall maintain all landscaped rights-of-way and all entry features; all streets and roadways within any easement or licenses owned or held by the Association, unless such streets or roadways are maintained by some governing authority; all Townhome Common Elements, and all landscaping, paving, streets, structures and improvements of any nature located thereon; and all ponds, streams and culverts located on the Townhome Property which serve as part of any drainage and storm-water retention system.

In addition, the Association shall provide exterior maintenance to each Townhome Building and Townhome Lot which is subject to assessment hereunder, as follows:  pressure wash exterior Townhome Building surfaces, perform an annual termite inspection on the exterior of each Townhome Building and renew termite bonds as necessary, maintain trees, shrubs, grass and walks, and irrigation of trees, shrubs and grass.  Such exterior maintenance by the Association shall not include glass surfaces.  In order to enable the Association to accomplish the foregoing, a perpetual easement in gross over all the Townhome Lots and Townhome Common Elements is hereby granted to the Association for the purpose of unobstructed access over and upon each Townhome Lot and Townhome Common Elements at all reasonable times to perform maintenance as provided in this Article.

Subject to prior written approval of the Architectural Review Committee pursuant to the Master Declaration, Owner of any Townhome Lot may, at his or her election, plant harmonious trees, shrubs, flowers and grass in his or her rear yard and maintain portions or all of his or her rear yard, provided that such maintenance by the Owner does not hinder the Association in performing its maintenance of the exterior of the building and the remaining spaces.  No such maintenance by an Owner shall reduce any assessments payable by him to the Association.

If, in the opinion of the Association, any such Owner fails to maintain his or her rear yard in a neat and orderly manner, the Association may revoke the Owner s maintenance rights for a period of not more than one year.

In the event that the need for maintenance or repair by the Association pursuant to this subsection is caused through the willful or negligent act of any Owner, his or her family, guests, invitees or delegates, the cost of such maintenance and repair shall be assessed against the Townhome Lot(s) of such Owner(s) as a Specific Assessment pursuant to Article II above.

Further, the Association shall be responsible for the repair and replacement of the exterior siding, roof, and roof decking of Units as may be determined necessary in the sole and exclusive discretion of the Association in a manner consistent with the then-current industry standards prevalent in Brunswick County.  Nothing contained herein shall create an obligation or responsibility of the Association to repair, maintain or replace the exterior siding, roof, or roof decking of Units other than the replacement at the end of its useful life.

3.3  Owner s Responsibility.  Except as provided in Section 3.2 above, each Owner shall be responsible for the routine cleanliness and general upkeep of his or her Townhome Lot.

3.4  Townhome Association s Right to Perform Owner s Responsibility.  If any Owner or occupant of a Townhome Lot fails to perform any of the duties or responsibilities set forth in this Article, then the Association may give such person written notice of such failure and such person must within ten (10) days after receiving such notice (which notice shall be deemed to have been received upon deposit in any official depository of the United States mail, addresses to the party to whom it is intended to be delivered at that party s current address as shown by the records of the Association, and sent by certified mail, return receipt requested), perform the care and maintenance required or otherwise perform the duties and responsibilities of such Owner.  Should any such person fail to fulfill this duty and responsibility within such period, then the Association, acting through its authorized agent or agents, shall have the right and power to enter onto the Townhome Lot in question and perform such care and maintenance without any liability for damages for wrongful entry, trespass or otherwise at any person.  All Owner(s) of a Townhome Lot on which such work is performed shall be liable for the cost of such work together with interest on the amounts expended by the Association in performing such work computed at the rate of twelve percent (12.00%) per annum form the date(s) such amounts are expended until repaid to the Association and for all costs and expenses incurred in seeking the compliance of such Owner with his or her duties and responsibilities hereunder, and shall reimburse the Association or on demand for such costs and expense (including interest as above provided).  If such Owner shall fail to reimburse the Association within thirty (30) days after mailing to such Owner of a statement for such costs and expenses incurred by the Association, the Association may charge a Specific Assessment for such amounts against the Townhome Lot of such Owner(s), and proceed to collect such Specific Assessment as provided in Article II above.

3.5  Cost of Maintenance.  All costs of the Association in maintaining Townhome Common Elements and Townhome Buildings and in meeting its responsibilities pursuant to this Article shall be Townhome Expenses.

 

4.1  Owners  Easement of Enjoyment.  Except as limited by the Master Declaration, this First Supplemental Declaration, and the Planned Community Act, every Owner of a Townhome Lot shall have a right of use and enjoyment in and to the Townhome Common Elements which shall be appurtenant to and shall pass with the title to every Townhome Lot.  Except as limited by the Master Declaration, this First Supplemental Declaration, and the Planned Community Act, any Owner of a Townhome Lot may delegate his rights of use and enjoyment of the Townhome Common Elements to the members of his family, his tenants, contract purchasers who reside on the Townhome Property, or his guests.

4.2  Easements for Encroachments.  All Townhome Lots and Townhome Common Elements shall be subject to easements for the encroachment of initial improvements constructed on any Townhome Lots or Townhome Common Elements to the extent that such initial improvements actually encroach, including, without limitation, such items as overhanging eaves, exterior walls, roof, fence, and patios.  In the event of an encroaching initial improvement, it shall be the responsibility of the Owner thereof to maintain the encroaching initial improvement in good condition and repair unless said responsibility is that of the Association as provided in the Master Declaration.  Notwithstanding anything above to the contrary, this provision does not authorize any encroachments except those which exist by virtue of original construction on a Townhome Lot that was approved pursuant to Article VI of the Master Declaration and is in compliance with any architectural guidelines promulgated by the Architectural Review Committee.

4.3  Easement for Utility Hookups and Conduits.  An easement over each Townhome Lot is hereby reserved unto and established in favor of Horton and the Association, its successors and assigns, for the installation and maintenance of utility hookups and conduits to serve other Townhome Lots located within the same Townhome Building; however, such utility hookups and conduits shall be located so as to interfere to the minimal extent possible with the use and enjoyment of the Townhome Lot burdened by such easement.

 

5.1  Association s Responsibility.  The Association shall purchase and maintain in force insurance coverage as provided by Article III of the Master Declaration.

5.2  Owner s Responsibility.  Each Owner of a Townhome Lot shall be responsible for obtaining and maintaining at all times insurance at their own expense covering all portions of the Owner s Townhome Lot, including structures and improvements on the Townhome Lot and Owner s personal property.  In addition, to the extent not insured by policies of the Association or the extent insurable losses result in the payment of deductibles under the Association s policies, every Owner shall obtain and maintain at all times insurance covering consequential damages to any other Townhome Lot or the Townhome Common Elements due to occurrences originating with the Owner s Townhome Lot and caused by the Owner s negligence, the Owner s failure to maintain the Owner s Townhome Lot or any other casualty within the Townhome Lot, which caused damage to any other Townhome Lot or Townhome Common Elements.  Additionally, each Owner of a Townhome Lot may, at their option, obtain insurance at their own expense to cover their personal liability, and to provide such other coverage as they may desire.

At the Association s request, Owners shall file a copy of each individual policy or policies covering their Townhome Lot and personal property with the Board of Directors of the Association within ten (10) days after receiving such request. Such Owner shall promptly notify the Association in writing in the event such policy is canceled.

Upon resolution of the Board of Directors of the Association and at least sixty (60) days  prior written notice to each Owner, the Association may, but shall not be required to, obtain as a Townhome Expense, a blanket insurance policy providing property insurance coverage for all structure on Townhome Lots (exclusive of improvements made by Owners).  In such event, the Owners shall be relieved of their insurance responsibility hereunder to the extent the Association assumes such responsibility.  Following such an assumption of insurance responsibility, the Association may at any time, upon not less than thirty (30) days  written notice to each Owner, discontinue such blanket insurance coverage, and in such event, each Owner shall immediately obtain in his or her own name and at his or her own expense the insurance coverage for such Owner s Townhome Lot required hereunder.

In the event of damage or destruction to a Townhome Lot, the Owner shall have sixty (60) days to complete any necessary repairs or reconstruction.  Such repair or reconstruction shall conform to the architectural requirements set forth in the Master Declaration.  The Owner shall pay any costs that are not covered by insurance proceeds.

 

Each wall which is built as a part of the original construction of a Townhome Building upon the Townhome Property and placed on a boundary line between Townhome Lots, and all reconstruction or extension of such walls, shall constitute party walls.  Except as provided in this Article, the general rules of law regarding party walls, lateral support in below-grade construction and liability for property damage due to negligence or willful acts or omissions shall apply to party walls on the Townhome Property.  The following rules and principles shall also apply to the party walls:

6.1  Sharing of Repair and Maintenance.  The cost of reasonable repair and maintenance of a party wall shall be share by the Owners of Townhome Lots who make use of the wall or benefit therefrom in proportion to such use and benefit.

6.2  Construction and Reconstruction of Party Wall.  The Owner of any Townhome Lot may construct, reconstruct, or extend a party wall in any direction (subject to and within the limitation of architectural control and other limitation of the Master Declaration) with the right to go upon the adjoining Townhome Lot to the extent necessary to perform such construction.  Such construction shall be done expeditiously.  Upon completion of such construction, such Owner shall restore the adjoining Townhome Lot to as near the same condition as prevailed before the commencement of such construction as is reasonably practicable.

6.3  Weatherproofing.  Notwithstanding any other provision of this Section, an Owner of a Townhome Lot who, by his negligence or willful act, causes the party wall to be exposed to the elements shall bear the whole cost of furnishing the necessary protection against such elements.

6.4  Right to Contribution Runs with Land.  The right of any Owner of a Townhome Lot to contribution from any other Owner under this Article shall be appurtenant to the land and shall pass to such Owner s successors in title.

6.5  Certification by Adjoining Townhome Property Owner that No Contribution is Due.  If any Owner of a Townhome Lot desires to sell his Townhome Lot, he may, in order to assure a prospective purchaser that no adjoining Owner has a right of contribution as provided in this Article, request of the adjoining Owner a certification that no right of contribution exists, whereupon it shall be the duty of each adjoining Owner to make such certification immediately upon request and without charges; provided, however, that where the adjoining Owner claims a right of contribution, the certification shall contain a recital of the amount claimed.

 

7.1  Parties Bound.  All persons and entities acquiring any interest in any of the Townhome Lots, including but not limited to lessees, shall be bound by the provisions of this First Supplemental Declaration.  All guests and invitees of such persons and entities, and any other occupants of any of the Townhome Lots, shall likewise be bound.

7.2  Duration.  The provisions of this First Supplemental Declaration shall run with and bind the Property perpetually, unless and until the Master Community is terminated pursuant to the Planned Community Act.

7.3  Amendment.  This First Supplemental Declaration may be amended only by a written instrument executed by the Association and authorized by the affirmative vote of at least sixty-seven percent (67%) of all the Townhome Lots existing at that time, cast in person or by proxy at a meeting held in accordance with the Bylaws of the Association.  Any amendment must be recorded to be effective.

7.4  Enforcement.  Any Owner of a Townhome Lot and/or the Association shall have the right to enforce, by any proceeding at law or in equity, all restrictions, conditions, covenants and obligations imposed by this First Supplemental Declaration.  The Association and/or any Owner of a Townhome Lot shall be entitled to recover reasonable attorney s fees incurred in bringing and prosecuting such action from the breaching or violating Owner(s).

7.5  Failure to Enforce Not a Waiver.  The failure to enforce any right, reservation, covenant or restriction contained in this First Supplemental Declaration, however long continued, shall not be deemed a waiver of the right to do so thereafter.

7.6  Variances.  Notwithstanding anything to the contrary contained herein, the Association or its designee shall be authorized to grant individual variances from any of the provisions of this First Supplemental Declaration, the Bylaws of the Association and any rule, regulation or use restriction promulgated pursuant thereto if the Association determine that waiver of application or enforcement of the provision in a particular case would not be inconsistent with the overall scheme of development for the Master Community.

7.7  Severability.  Invalidation of any one of these covenants or restrictions by judgment or court order shall not affect any of the other provisions of this First Supplemental Declaration, which shall remain in full force and effect.

7.8  Captions.  The captions herein are inserted only as a matter of convenience and for reference, and shall not be construed to define, limit or describe the scope of any provision of this First Supplemental Declaration.

7.9  Law Controlling.  This First Supplemental Declaration shall be construed and governed pursuant to the laws of North Carolina.

7.10  References to Statutes.  All references herein to any statutory provision shall be construed to include and apply to any subsequent amendments to or replacements of such provision.

 

 

 

 

 

 

 

Issue:  Discussion regarding formalizing the Board’s interpretation of the following issues discussed:
 

1.  CC&R Article VI, Sec. 3(b) Nuisances, reads as follows:

 

Nuisances.  No noxious or offensive activity shall be carried on upon any Lot, nor shall anything be done thereon which may be or may become an annoyance or nuisance to the neighborhood.  There shall not be maintained any plants or animals, nor device or thing of any sort whose normal activities or existence are in any way noxious, dangerous, unsightly, unpleasant, or other nature as may diminish or destroy the enjoyment of other Lots by the Owners thereof. It shall be the responsibility of each Owner to prevent the development of any unclean, unsightly, or unkempt condition of buildings or grounds on the Owner’s Lot which would tend to decrease the beauty of the neighborhood as a whole or the specific area.

 

Board Interpretation:  The Board has identified trash cans as unsightly and unpleasant and are to be enclosed within a wall or plant screen, the type and size approved by the Architectural Review Committee, to preclude the same from causing an unsightly view from the highway, street or way within the subdivision, or from any other residence within the subdivision.  The Board recognizes that most of the homes were built without any designated location for trash cans.  Hence, the Board will accept a smaller plant or plants that will eventually grow to screen the trash cans.  However, under no circumstances should trash cans be left in the driveways or in front of the home, with the exception of the night before trash/recycle day and on trash/recycle day.

 

2.  CC&R Article VI, Sec. 3(e) Animals, reads as follows:

 

Animals.  No animals, livestock or poultry of any kind shall be kept or maintained on any Lot or in any dwelling except that cats, dogs or other household pets may be kept or maintained provided that they are not kept or maintained for commercial purposes and provided further that they are not allowed to run free, bark excessively, and are at all times kept properly leashed or under the control of their owner, and do not become a nuisance.

 

Board Interpretation:  The Board has interpreted and included as a nuisance that all dog owners or the person in charge of the dog(s) at the time, must clean up after the dog(s) and dispose of the dog mess appropriately.

 

3.  Existing Rule:  Watercraft in the neighborhood:  

 

Watercraft are permitted behind a privacy fence and out of view from the street.

Watercraft are permitted on the curb or driveway for loading, unloading, cleaning, and charging for 48 hours.

 

Board Interpretation:  The Board has interpreted this rule to mean the 48 hours is two (2) overnights in a 7-day period.

 

 

Issue:  Confusion on required insurance.  

 

CC&R Article Xi, Sec 4 Insurance, reads as follows:

 

A Marina Member, prior to the use of a Boat slip, shall obtain and thereafter maintain a liability insurance policy which insures against any liability arising out of the use, ownership, maintenance and control of any watercraft owned by an assignee, or arising from the Marina Member s possession and use, from or connected with any guests, visitors or others who may come onto the premises to visit the watercraft owner or boat, with limits of liability therefor of not less than $1,000,000 per occurrence, and property damage coverage of $300,000 which policy shall include an endorsement to cover liability of the Association to any person.  A copy of the insurance policy shall be provided to the Association upon issuance and each renewal.

 

The Board after consultation with legal counsel, marina insurance providers, and reviewing of the owners questions determined easily it is unclear the amount of insurance required and a clarification was needed.

 

BOARD CLARIFICATION STATEMENT:

 

1.  It is the intent of the Marina required insurance for boats in the marina to have the following minimum coverage:

• $1,000,000 of liability requirement that includes:
  • Pollution Liability of one million or the Statutory Limit as set forth by the Oil Pollution Act of 1990, whichever is greater
  • Coverage for Removal of Wreck