THIRD AMENDMENT TO DECLARATION
OF COVENANTS, CONDITIONS AND RESTRICTIONS
OF
PINEWILD COUNTRY CLUB OF PINEHURST
Drafted
by Stephen F. Later
Robbins
May & Rich LLP
120
Applecross Road
Pinehurst,
North Carolina 28374
TABLE OF CONTENTS
I. DEFINITIONS
Aggregate Votes….…………………………………………………………. 7
Annual
Assessment…………………………………………………………. 7
Architectural Review Board………………………………………………… 7
Articles of Incorporation……………………………………………………. 7
Association…………………………………………………………………. 7
Board……………………………………………………………………….. 7
Bylaws……………………………………………………………………… 7
Common Elements…………………………………………………………. 7
Common
Expenses…………………………………………………………. 8
Days ……………………………………………………………………….. 8
Declarant…………………………………………………………………… 8
Declaration…………………………………………………………………. 9
Declaration
Plan……………………………………………………………. 9
Existing
Property…………………………………………………………… 9
Foreclosure…………………………………………………………………. 9
Golf Course
Property………………………………………………………. 9
Governing
Documents…………………………………………………….... 9
Lease………………………………………………………………………... 9
Lot………………………………………………………………………….. 9
Majority…………………………………………………………………….. 10
Member…………………………………………………………………….. 10
Mortgage…………………………………………………………………… 10
Mortgagee…………………………………………………………………... 10
Non-Permanent Common Elements………………………………………... 10
Owner………………………………………………………………………. 10
Person………………………………………………………………………. 10
Policies
and Procedures…………………………………………………….. 10
Property…………………………………………………………………….. 11
Public
Records……………………………………………………………… 11
Regime……………………………………………………………………… 11
Residence…………………………………………………………………… 11
Rules
and Regulations……………………………………………………… 11
Special
Assessment………………………………………………………… 12
Utility
Area……………………………………………………………….… 12
Vote………………………………………………………………………… 12
II. PROPERTY
SUBJECT TO DECLARATION
Existing
Property…………………………………………………………... 12
Additions
to Existing Property…………………………………………….. 12
III. COMMON
ELEMENTS
Common
Elements; Owner’s Easements of Enjoyment……………………. 15
Usage
Rights………………………………………………………………... 16
Area Boundaries and
Conveyance of Common Elements………………….. 16
Delegation
of Use…………………………………………………………… 16
IV. TERM
Term………………………………………………………………………... 16
Application…………………………………………………………………. 17
V. CONSTRUCTION
ON LOTS/RESIDENCES
Minimum
Requirements……………………………………………………. 17
Revisions
to Policies and Procedures………………………………………. 20
VI. CONSTRUCTION
POLICIES
Time
Period…………………………………………………………………. 20
Grading……………………………………………………………………… 20
VII. SEWAGE
DISPOSAL AND WATER SYSTEM
Charges……………………………………………………………………… 21
Connection
Procedure………………………………………………………. 21
Private
Water Wells………………………………………………………… 21
VIII. USE
OF PROPERTY
Use
of Property……………………………………………………………... 21
IX. EASEMENTS
Utility
and Drainage Easement……………………………………………... 26
No
Interest in Utilities ……………………………………………………… 26
Easement
for Use of Streets………………………………………………… 27
Antennas
and Flagpoles…………………………………………………….. 27
Owner’s Right to Ingress and Egress……………………………………….. 28
Inspection
and Maintenance………………………………………………… 28
Other
Easements……………………………………………………………. 28
X. TRAFFIC
REGULATION
Automobiles………………………………………………………………… 28
Boats………………………………………………………………………… 28
XI. ENFORCEMENT
Violation
of Declaration…………………………………………………….. 29
Invalidity……………………………………………………………………. 30
Laws
and Ordinances……………………………………………………….. 30
Cumulative
Remedies………………………………………………………. 31
Other
Enforcement…………………………………………………………. 31
Waiver……………………………………………………………………… 31
XII. VARIANCES
Variances…………………………………………………………………… 31
XIII. INSURANCE
AND CASUALTY LOSSES
Insurance…………………………………………………………………… 31
Review
of Coverage……………………………………………………….. 32
Owner’s
Insurance…………………………………………………………. 32
Use
of Proceeds……………………………………………………………. 32
XIV. MAINTENANCE/REPAIR
Lots
and Residences………………………………………………………... 32
Association
Responsibilities for Maintenance……………………………... 33
XV. CONDEMNATION
General……………………………………………………………………… 34
Common
Elements…………………………………………………………. 34
XVI. THE
ASSOCIATION AND OWNERS
Association…………………………………………………………………. 34
Membership………………………………………………………………… 34
Classes
of Membership……………………………………………………... 34
Responsibilities
of Association……………………………………………... 34
Services……………………………………………………………………... 35
Personal
Property for Common Use………………………………………... 35
Rules
and Regulations……………………………………………………… 35
Implied
Rights ……………………………………………………………… 36
Proxies……………………………………………………………………… 36
Records……………………………………………………………………... 36
XVII. COMMON
EXPENSES
Budget………………………………………………………………………. 36
Common
Expenses…………………………………………………………. 37
XVIII. ASSESSMENT
Notification of Assessments………………………………………………… 38
Liens and Obligations………………………………………………………. 38
Limitation on Assessments…………………………………………………. 39
Special Assessments for Capital Improvements……………………………. 40
Collection…………………………………………………………………… 40
Lien for Assessments……………………………………………………….. 40
Subordination of the Lien to Mortgages……………………………………. 42
Exempt Property……………………………………………………………. 42
Failure
to Assess……………………………………………………………. 43
XIX. NOTICES
Notices……………………………………………………………………… 43
Agent
to Receive Service of Process……………………………………….. 43
XX. RENEWAL
OF COVENANTS AND RESTRICTIONS
Application…………………………………………………………………. 43
Acceptance………………………………………………………………….. 44
XXI. AMENDMENTS
Amendments
by Declarant…………………………………………………. 44
Amendments
by Members…………………………………………………. 44
Validity
and Effective Date………………………………………………… 46
Proviso……………………………………………………………………… 46
XXII. REMEDIES
FOR VIOLATIONS
Breach………………………………………………………………………. 46
Preservation of Lien………………………………………………………… 47
XXIII. DECLARANT
EXEMPTIONS
Exemption…………………………………………………………………... 47
XXIV. MISCELLANEOUS
Multiple
Owners…………………………………………………………….. 47
Conveyance…………………………………………………………………. 47
Perpetuities………………………………………………………………….. 47
Rights
of Mortgagees……………………………………………………….. 48
Declarant’s
Facilities………………………………………………………... 48
No
Partition…………………………………………………………………. 48
Construction………………………………………………………………… 48
Indemnification……………………………………………………………... 48
Security……………………………………………………………………... 49
Golf
Courses………………………………………………………………... 49
Presence
and Management of Wildlife……………………………………... 49
Headings……………………………………………………………………. 50
Gender…………………………………………………………………….… 50
THIRD
AMENDMENT TO DECLARATION
OF COVENANTS,
CONDITIONS AND RESTRICTIONS
OF PINEWILD
COUNTRY CLUB OF PINEHURST
THIS THIRD AMENDMENT TO DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS is made effective as of April 1, 2002 pursuant to Section 4.1 of the Declaration of Covenants, Conditions and Restrictions dated December 8, 1987, as amended, and recorded in Book 583 at Page 156 of the Registry of Deeds of Moore County, North Carolina.
WITNESSETH
WHEREAS Pinewild, Inc. (hereinafter the “Declarant”)
subjected certain real property situate in the Township of Mineral Springs,
County of Moore, State of North Carolina, set forth in a description thereof
recorded in Book 583 at Pages 202 to 204 of the Registry of Deeds of Moore
County, North Carolina (hereinafter the “Phase One Property” and the “Phase
One-A Property”), to that certain Declaration of Covenants, Conditions, and
Restrictions of Pinewild Country Club of Pinehurst dated December 8, 1987 and
recorded in Book 583 at Page 156 of the Registry of Deeds of Moore County,
North Carolina (hereinafter the “Original Declaration”);
WHEREAS Pinewild Project Limited Partnership as the successor in interest to Declarant amended the Original Declaration, pursuant to that certain Amendment and Incorporation of Declaration of Covenants, Conditions, and Restrictions dated August 31, 1990 and recorded in Book 742 at Page 35 of the Registry of Deeds of Moore County, North Carolina, inter alia, to subject certain additional real property situate in the Township of Mineral Springs, County of Moore, State of North Carolina, set forth in a description thereof recorded in Book 742 at Pages 45 to 46 of the Registry of Deeds of Moore County, North Carolina (hereinafter the “Phase Two Property”) to the Original Declaration;
WHEREAS Pinewild Project Limited Partnership as successor in interest to Declarant further amended the Original Declaration, pursuant to that certain Second Amendment to Declaration of Covenants, Conditions, and Restrictions dated August 22, 1994 and recorded in Book 1039 at Page 494 of the Registry of Deeds of Moore County, North Carolina, inter alia, to subject certain additional real property situate in the Township of Mineral Springs, County of Moore, State of North Carolina, described in plats recorded in Plat Cabinet 5 at Slide 539, Plat Cabinet 5 at Slide 540, Plat Cabinet 5 at Slide 622, Plat Cabinet 5 at Slide 623, Plat Cabinet 5 at Slide 776, Plat Cabinet 5 at Slide 814, Plat Cabinet 5 at Slide 815, Plat Cabinet 5 at Slide 816, and Plat Cabinet 5 at Slide 818 of the Registry of Deeds of Moore County, North Carolina (hereinafter the “Phase Three Property”);
WHEREAS Pinewild Project Limited Partnership as successor in interest to Declarant owns certain real property situate in the Township of Mineral Springs, County of Moore, State of North Carolina, described in a map thereof attached hereto as Schedule A and incorporated herein by this reference (hereinafter the “Phase Four Property”);
WHEREAS Pinewild Project Limited Partnership as successor in interest to Declarant owns certain real property situate in the Township of Mineral Springs, County of Moore, State of North Carolina, partially described in a plat map recorded in Plat Cabinet 5 at Slide 521 of the Registry of Deeds of Moore County, North Carolina and further described in a map thereof attached hereto as Schedule B and incorporated herein by this reference (hereinafter the “Phase Five Property”);
WHEREAS, for the efficient preservation, protection
and enhancement of the community as well as to provide for the maintenance of
all Common Elements, the Pinewild Maintenance Corporation d/b/a the Pinewild
Property Owners Association (hereinafter the “Association”) was incorporated as
a nonprofit corporation on January 19, 1988 for the purpose of exercising and
performing the aforesaid functions and to which was delegated and assigned the
powers of owning, maintaining, and administering the Common Elements
transferred to the Association pursuant to an instrument recorded in Book 1867
at Page 222 of the Registry of Deeds of Moore County, North Carolina,
administering and enforcing the covenants, conditions, and restrictions set
forth herein, and collecting and disbursing the assessments and charges
hereinafter created;
WHEREAS the Owners desire (a) to ensure the continued attractiveness of the Pinewild community, to prevent any future impairment thereof, and to prevent nuisances thereon and thereto and (b) to preserve, protect, and enhance the Common Elements as well as to provide for the maintenance and upkeep of the Common Elements and, therefore, it is desired to subject the Phase One Property, the Phase One-A Property, the Phase Two Property, and the Phase Three Property, together with such additions as may hereafter be made thereto, to the covenants, conditions, restrictions, easements, charges, and liens hereafter set forth, each and all of which is and are for the benefit of the property owner thereof;
WHEREAS, although copies of the Architectural Review Board Policies and Procedures and the Bylaws of the Pinewild Maintenance Corporation—albeit subsequently amended and superceded—were attached for purposes of illustration to the Original Declaration as Schedules C and D thereto, copies of the current Architectural Review Board Policies and Procedures and the Bylaws of the Pinewild Maintenance Corporation shall be available to the Owners in the offices of the Association; and
WHEREAS, pursuant to Section 4.1 of the Original Declaration, the Owners adopted the amendment hereinafter set forth.
NOW, THEREFORE, the Owners adopted the amendment hereinafter set forth on February 28, 2002 to be effective as of April 1, 2002.
A. The (a) Declaration of Covenants, Conditions and Restrictions dated December 8, 1987 and recorded in Book 583 at Page 156 of the Registry of Deeds of Moore County, North Carolina, (b) Amendment and Incorporation of Declaration of Covenants, Conditions and Restrictions dated August 31, 1990 and recorded in Book 742 at Page 35 of the Registry of Deeds of Moore County, North Carolina, and (c) Second Amendment to Declaration of Covenants, Conditions and Restrictions dated August 22, 1994 and recorded in Book 1039 at Page 494 of the Registry of Deeds of Moore County, North Carolina are stricken in their entireties and the following is inserted in lieu thereof.
ARTICLE I
DEFINITIONS
1.1
Aggregate Votes. The
term “Aggregate Votes” shall mean and refer to all of the Votes entitled to be
cast hereunder by the respective Owners of all of the Lots as Members of the
Association.
1.2
Annual Assessment. The term “Annual Assessment” shall mean and refer to an
assessment levied pursuant to Article 18 hereof and described therein as such.
1.3 Architectural
Review Board. The term “Architectural Review Board” shall
mean and refer to a committee of not fewer than three (3) and not more than
seven (7) individuals—such individuals to be Owners—designated and appointed by
the Board to carry out the duties herein assigned to said Architectural Review
Board and shall operate according to the policies and procedures established by
the Architectural Review Board and approved by the Board. The members of the Architectural Review
Board shall serve at the pleasure of the Board, and the chairman of the
Architectural Review Board shall be appointed by the Board, and the chairman of
the Architectural Review Board shall serve thereas at the pleasure of the
Board.
1.4 Articles of
Incorporation. The term “Articles of
Incorporation” shall mean and refer to the Articles of Incorporation of
Pinewild Maintenance Corporation d/b/a the Pinewild Property Owners Association
and amendments thereto as filed with the Secretary of State of North Carolina.
1.5 Association. The term “Association” shall mean and refer to Pinewild
Maintenance Corporation d/b/a Pinewild Property Owners Association, a North
Carolina nonprofit corporation, its successors, and assigns.
1.6 Board. The term “Board” shall mean and refer to a board of directors of natural individuals of the number stated in the Bylaws—all of whom shall be Owners—and that constitutes the Board of Directors of the Association that shall manage and administer the business, operations, and affairs of the Association on behalf of the Owners.
1.7 Bylaws. The term “Bylaws” shall mean and refer to
such governing regulations as are adopted for the regulation and management of
the Association including such amendments thereof and thereto as may be adopted
from time to time.
1.8 Common Elements. The term “Common Elements” shall mean and refer to the common
areas and facilities owned by the Association and dedicated to the common use
and enjoyment of the Owners including, but not limited to, (a) real
property—including, but not limited to, (i) gatehouses and entrances described
in instruments recorded in Plat Cabinet 9 at Slide 35, Plat Cabinet 9 at Slide
37, and Plat Cabinet 9 at Slide 41 of the Registry of Deeds of Moore County, North
Carolina, (ii) roads, streets, and railroad crossings, (iii) the maintenance
area described in instrument recorded in Plat Cabinet 9 at Slide 39 of the
Registry of Deeds of Moore County, North Carolina, (iv) the mail box area
described in instrument recorded in Plat Cabinet 9 at Slide 43 of the Registry
of Deeds of Moore County, North Carolina, (v) the existing cemetery described
in instrument recorded in Plat Cabinet 3 at Slide 388 of the Registry of Deeds
of Moore County, North Carolina, (vi) the recreation area described in
instrument recorded in Plat Cabinet 4 at Slide 136 of the Registry of Deeds of
Moore County, North Carolina, (vii) the pond located on Lot 2364 and further
described in instrument recorded in Plat Cabinet 5 at Slide 765 of the Registry
of Deeds of Moore County, North Carolina, (viii) the pond located on Lot 2191
and Lot 3791 and further described in instrument recorded in Plat Cabinet 5 at
Slide 547 of the Registry of Deeds of Moore County, North Carolina, (ix) the
pond located between Lot 2424 and 2425 and further described in instrument
recorded in Plat Cabinet 5 at Slide 321 of the Registry of Deeds of Moore
County, North Carolina, and (x) the perimeter fence—situate in the Township of
Mineral Springs, County of Moore, State of North Carolina, described in
instrument recorded in Book 1867 at Page 222 of the Registry of Deeds of Moore
County, North Carolina, (b) vehicles, (c) equipment, and (d) its ownership
rights in and maintenance obligations for, as applicable and to the extent
applicable, the roadsides, shoulders, drainage areas, landscaping, signs,
piers, recreational sites (excluding the Golf Course Property and real property
owned or retained by Declarant and his successors and assigns), maintenance
buildings and equipment, and railroad crossings, and (e) comparable real
property and personal property, tangible and intangible, related to real
property annexed to the Existing Property—and thus brought within the
jurisdiction of the Association—pursuant to the terms hereof.
1.9 Common Expenses. The term “Common Expenses”
shall mean and refer to the actual and estimated expenses of the Association
incurred or anticipated to be incurred in providing for the acquisition,
construction, management, maintenance, and care of the Common Elements and the
Association’s obligations recited herein and further defined in Section 17.2
hereof.
1.10 Days. The term “Days” shall mean and refer to a single solar day of
twenty-four (24) hours; provided, however, that, if the time period by which
any action required hereunder must be performed expires on a Saturday, Sunday,
or legal holiday, then such time period shall be automatically extended to the
close of business of the next regular business day.
1.11 Declarant. The term “Declarant” shall mean and refer to Pinewild Project Limited Partnership, a Texas limited partnership, its successors and assigns in Pinewild Country Club of Pinehurst as shown on the filed plat and any Lots not sold or conveyed to Owners that are owned by Pinewild Project Limited Partnership if such successor or assign should acquire more than one undeveloped Lot from Declarant for the purpose of development.
1.12 Declaration. The term “Declaration” shall mean and refer to the Declaration of
Covenants, Conditions and Restrictions, as amended from time to time, as well
as the amendments thereto set forth herein and any subsequent amendments
thereto.
1.13 Declaration Plan. The term “Declaration Plan”
shall mean and refer to surveys and amendments thereto of (a) the Property
showing the improvements erected on or to be erected thereon and (b) the Lots
within or contiguous to the Property showing only the improvements erected, if
any, at the time that the Original Declaration was recorded the Registry of
Deeds of Moore County, North Carolina.
1.14 Existing Property. The term “Existing Property”
shall mean and refer to the Phase One Property, the Phase One-A Property, the
Phase Two Property, and the Phase Three Property.
1.15 Foreclosure. The term “Foreclosure”
shall mean and refer to the exercise of the rights of the holder of any
mortgage or other instrument creating a security interest in a Lot or
Residence.
1.16 Golf Course Property. The term “Golf Course
Property” shall mean and refer to the real property owned by Declarant or his
successors and assigns described in (a) instrument recorded in Book 1039 at
Page 314 of the Registry of Deeds of Moore County, North Carolina and (b) other
instruments recorded in the Registry of Deeds of Moore County, North Carolina
in which such real property is so identified including, but not limited to, two
(2) eighteen (18)-hole golf courses further described as the Holly Course and
the Magnolia Course, one (1) nine (9)-hole golf course further described as the
Azalea Course, and one (1) three (3)-hole golf course further described as the
Challenge Course as well as all buildings, parking areas, driving ranges, and
any other property related to or used by the golf course operations and the
owner thereof.
1.17 Governing
Documents. The term “Governing
Documents” shall mean and refer to the Declaration, the Bylaws, the Articles of
Incorporation, all Supplemental Declarations, the Policies and Procedures, the
Rules and Regulations, and any applicable Federal, state, county or municipal statute,
regulation, law, code or ordinance or other governmental requirement, and any
of the above as may be amended from time to time.
1.18 Lease. The term “Lease” shall mean and refer to all leases, subleases,
and rental contracts.
1.19 Lot.
The term “Lot” shall mean and refer to any
individual plot of land shown upon a recorded subdivision map of a portion of
the Property, as recorded by Declarant, on file with the Registry of Deeds of
Moore County, North Carolina. A Lot
shall be intended for use as the site for not more than one (1) Residence. The term “Lot” as used herein also includes
the Residence, if any, constructed thereon.
1.20 Majority. The term “Majority” shall mean and refer to any
number of Votes that is greater than fifty percent (50%) of the applicable
votes.
1.21 Member. The term “Member” shall mean and refer to every person or entity
who holds membership in the Association.
The ownership of each Lot shall entitle the Owner thereof to one (1)
Vote in the Association. If more than
one (1) Person owns an interest (other than a leaseholder or security interest)
in a Lot, all such persons shall be Members; provided, however, that the voting
rights appurtenant to a Lot shall be exercised as the Owners among themselves
determine but in no event shall there be more than one (1) Vote with respect to
a Lot.
1.22 Mortgage. The term “Mortgage” shall mean and refer to a mortgage, a deed of
trust, a deed to secure debt or any other form of instrument creating a
security interest in a Lot or Residence.
1.23 Mortgagee. The term “Mortgagee” shall mean and refer to any grantee in or
holder of a Mortgage.
1.24 Non-Permanent
Common Elements. The term “Non Permanent Common
Elements” shall mean and refer to passive recreational lands, such as natural
areas, lands used for agriculture pasture or forestry lands reserved for the
operation of water and waste water systems, and all lands retained for future
dedication either as Lots or Common Elements or for water or sewer system
usage. Declarant reserves the right to
own and control the use of all Non-Permanent Common Elements including the
right to lease or to convey such to the Association and to convey such to other
Persons subject to this Declaration.
1.25 Owner. The term “Owner” shall mean and refer to the one or more persons
who hold the recorded title to any Lot but excluding in all cases any party
holding an interest merely as security for the performance of an
obligation. If a Lot is owned by more than
one Person, however, all such Persons shall be jointly and severally obligated
to perform the responsibilities of the Owner.
The term “Owner,” if the singular form is used herein, shall include all
Persons who hold the recorded title to any Lot.
1.26 Person. The term “Person” shall mean and refer to natural
person, a corporation, a partnership, a limited liability company, a fiduciary
acting on behalf of another person or any other legal entity.
1.27 Policies
and Procedures. The term “Policies
and Procedures” shall mean and refer to the design and construction guidelines
and the application and review procedures applicable to the Property
promulgated and administered by the Architectural Review Board as amended
thereby—subject to the approval of the Board—from time to time.
1.28 Property. The term “Property” shall mean and refer to the
Phase One Property, the Phase One-A Property, the Phase Two Property, the Phase
Three Property and any additions or replacements that may be brought within the
scheme and jurisdiction of this Declaration and the Association pursuant to
Section 2.2 hereof including, but not limited to, the Lots and Common Elements
together with the buildings and all other improvements thereon and all
easements and rights appurtenant thereto that are now or hereafter used in
connection with the ownership and use of said real property and the
improvements thereon.
1.29 Public
Records. The term “Public Records” shall mean and
refer to the records available to the public in the respective offices of the
Registry of Deeds and the Clerk of Superior Court of Moore County, North
Carolina.
1.30 Regime. The term “Regime” shall mean and refer to a section or portion of
the Property—as designated by Declarant and determined by reference to plat
maps filed by Declarant and recorded in the Registry of Deeds of Moore County,
North Carolina—brought within the scheme of this Declaration as such for, inter
alia, the levy of assessments upon the Owners of the Lots therein. The section or portion of the Property
within a Regime shall consist of the Lots and the Common Elements therein that
share similar characteristics and maintenance and operation expenses. The Annual Assessment for all unimproved
Lots within a single Regime shall be in an identical amount and the Annual
Assessment for all Lots upon which a completed Residence was erected within a
single Regime shall be in an identical amount; provided, however, that
different Regimes may, in the sole discretion of Declarant, maintain different
levels of assessment due to the location of the Common Elements within the
Regime or the usage thereof by the Owners of Lots within the Regime. Upon the transfer of the Common Elements
associated with such Regime to the Association, however, the Association shall
not be bound to the amount of the Annual Assessment levied thereon by Declarant
and shall be entitled to adjust, restate, and recalculate the assessment
applicable to the Regime to reflect the financial obligations of the
Association.
1.31 Residence. The term “Residence” shall mean and refer to (a) a building erected on a Lot for use as a dwelling including any exterior steps, garage, parking space, patio, deck, driveway, balcony, storage facilities, terraces, verandas, and landscaping located on the Lot and (b) the Lot upon which said building and improvements are located.
1.332 Rules
and Regulations. The
term “Rules and Regulations” shall mean and refer to those reasonable rules and regulations
governing the use of the Property adopted by the Association and amended and
revised thereby from time to time and at any time.
1.33 Special
Assessment. The term “Special Assessment” shall mean and
refer to an assessment levied pursuant to Article 18 hereof and described
therein as such.
1.34 Utility Area. The term “Utility Area” shall mean and refer to those tracts or parcels of the Property set aside by Declarant, at its sole option, for fire stations, maintenance buildings, and the installation of utility systems to serve the remainder of the Property. The utility systems shall include, but not be limited to, water, sewer, telephone, electricity and gas. The Utility Areas may be conveyed by Declarant to a municipality or to public utility companies that operate and maintain such systems. The Utility Areas shall be accessible by easements of ingress and egress reserved herein over the Property if not located on a public or private road.
1.35 Vote. The term “Vote” shall mean and refer to the single vote entitled to be cast hereunder by the Owner of a Lot as a Member of the Association. Except for multiple Lots recombined in order to create a single tract and of which single tract a plat map was recorded the Registry of Deeds of Moore County prior to March 31, 2002, if multiple Lots are recombined in order to create a single tract in the records of the Registry of Deeds of Moore County, the Owner of the resultant tract shall be entitled to a Vote for each of the Lots so recombined. In no case, therefore, shall an Owner be entitled to cast a number of Votes in excess of the number of Annual Assessments paid thereby.
ARTICLE II
PROPERTY SUBJECT TO DECLARATION
2.1 Existing Property. The Existing Property is and shall be held,
transferred, sold, conveyed, and occupied under this Declaration and within the
jurisdiction of the Association.
2.2 Additions to Existing
Property. Additional real property may be brought
within the scheme of this Declaration and the jurisdiction of the Association
in the following manner.
2.2.1
Annexation.
2.2.1.1 Requisite Vote. The annexation of any additional real property to the Property
shall require the affirmative vote of at least sixty-seven percent (67%) of the
Aggregate Votes at a meeting duly called and constituted for, inter alia,
this purpose and of which written notice was sent to all Members not fewer than
thirty (30) Days nor more than sixty (60) Days in advance of the meeting
setting forth the purpose of the meeting.
The presence of Members or of proxies entitled to cast ten percent (10%)
of the Aggregate Votes shall constitute a quorum for such a meeting for
purposes of the adjournment thereof. In
the event that a quorum is present and adopts an annexation resolution, but
said resolution fails to receive the sixty-seven percent (67%) vote required,
then additional Members not present may give their written assent to the action
taken at said meeting. In such event, the requisite sixty-seven percent (67%)
vote shall include those who voted favorably at a meeting in person and by
proxy and of those Members who give written assent to the annexation resolution
within sixty (60) Days thereof.
2.2.1.2 Phase Four Property; Phase
Five Property. Any and all portions of the Phase Four
Property and/or the Phase Five Property may be subjected to this Declaration by
a declaration of such annexation that incorporates this Declaration—and the
application hereof to Phase Four and/or Phase Five—by reference. The Lots in any and all portions of the
Phase Four Property and/or the Phase Five Property subjected to this
Declaration shall be deemed part of Pinewild Country Club of Pinehurst although
the Lots thereon will appear on later phases or plats of the Property. The consent of the Association shall not be
necessary for annexation of all Lots within such Phase Four Property and/or Phase
Five Property so long as such annexation incorporates this Declaration—and the
application hereof to the Phase Four Property and/or Phase Five Property—by
reference and subjects the Phase Four Property and/or Phase Five Property
hereto. In the alternative and thus in
lieu of the annexation of the Phase Four Property and/or Phase Five Property as
hereinabove set forth, however, Declarant hereby reserves the right to subject
any and all portions of the Phase Four Property and/or the Phase Five Property
to separate and distinct covenants, conditions, and restrictions so long as, in
order to maintain the harmony of the Existing Property, (a) the owners of such
lots created in such portions of the Phase Four Property and/or the Phase Five
Property under separate and distinct covenants, conditions, and restrictions
are not and shall not be subject to the jurisdiction of the Association or
entitled to use of the Common Elements except that the use of the streets and
roads for ingress to and egress from the Golf Course Property shall be
available to owners of such lots in the manner
available to members of the general public for such purposes and (b) such lots created in such portions
of the Phase Four Property and/or the Phase Five Property under separate and
distinct covenants, conditions, and restrictions do not and shall not create or
impose financial obligations, burdens or responsibilities upon the Association.
2.2.1.3 Transfer of Title. Upon the annexation of any additional real property
to the Property, the Association shall be entitled, in its discretion from time
to time and at any time, to receive record title to all streets and roads and
other Common Elements therein upon the completion thereof.
2.2.1.4 Recordation. The additions authorized above shall be made by filing of record a plat of the next phase or portion of a phase of the Pinewild Country Club of Pinehurst in the Registry of Deeds of Moore County, North Carolina with respect to the additional real properties that shall extend the scheme of this Declaration and the jurisdiction of the Association for such additional real properties and thereby subject such additions to the benefits, agreements, restrictions and obligations set forth herein, including, but not limited to, assessments as herein determined to pay for Association expenses.
2.2.1.5 Golf
Course Excepted. No part of any
Golf Course Property shall be brought within the scheme of this Declaration or
within the jurisdiction of the Association.
2.2.1.6 No Effect on Regimes. The recordation of plats in the Moore County Registry
of Deeds in order to effect the annexation of real property as set forth herein
shall neither affect nor be construed to affect the imposition of Regimes by
Declarant pursuant to the terms hereof as such Regimes shall be independent of
and unrelated to such recorded plats.
2.2.1.7 No Subdivision. No Lot—as set forth on a subdivision map, as recorded by Declarant in the
Moore County Registry of Deeds, of a portion of Pinewild Country Club of
Pinehurst—shall be subdivided so as to
create a greater number of smaller Lots.
Further, although multiple Lots may be combined into a single Lot, such
recombined Lot shall not be subject to subdivision after such
recombination. The assessments
applicable to such recombined Lots—except those Lots recombined pursuant to
prior rules of Declarant and the Association—shall be unaffected by the
recombination and the assessments applicable to such recombined Lots shall
remain due pursuant to the status of the Lots as set forth on a
subdivision map, as recorded by Declarant in the Moore County Registry of
Deeds, of a portion of Pinewild Country Club of Pinehurst.
ARTICLE III
COMMON
ELEMENTS
3.1 Common
Elements; Owner’s Easements of Enjoyment. The
Common Elements shall consist of the remaining portion of the Property after
deleting the (a) Lots, (b) Residences, (c) Utility Areas, (d) lakes (unless
Declarant elects to include a portion or all of same and the Association
approves the transfer and receipt of same), (e) the Golf Course Property, and
such other areas, if any, designated to be excluded by Declarant in an
instrument recorded in the Registry of Deeds of Moore County, North
Carolina. Each Owner shall have a right
and easement of enjoyment in and to the Common Elements owned by the
Association, which shall be appurtenant to and shall pass with the title to
every Lot subject to the provisions of this Article III.
3.1.1 Suspension of Use Rights.
The Association shall be entitled to suspend the voting rights of
and the right to use recreational facilities of the Common Elements by an
Owner—and his immediate family, guests, invitees, visitors, lessees, tenants,
servants, employees, and agents—for any period during which any assessment
against said Owner’s Residence or Lot remains unpaid.
3.1.2 Dedication. The
Association shall be entitled to dedicate, transfer or to grant an easement in
or to all or any part of the Common Elements to Declarant, any public agency,
authority or utility for such purposes and subject to such conditions as may be
agreed to by the Association and the grantee expressed in an instrument
agreeing to such dedication, transfer or grant that is signed by the
Association and placed upon the records of the Registry of Deeds of Moore
County, North Carolina.
3.1.3 Limitations. The
Association shall be entitled to provide for the exclusive use by an Owner—and
the occupants of such Owner’s Residence and guests—of certain portions of the
Common Elements at certain designated times and for such functions as may be
from time to time permitted subject to the payment of an appropriate fee for
such exclusive use.
3.1.4 Reservation of Easements.
Declarant reserves all reasonable easements required for (a) the
benefit of the owner of the Golf Course Property, its successors, and assigns
over the Common Elements for use, maintenance, and operation of the Golf Course
Property and (b) the development of the Property by Declarant.
3.1.5 Fees. The
Association shall be entitled to charge reasonable admissions and other fees
for the use of any facility situated in the Common Elements.
3.1.6 Loans. The
Association shall be entitled, in accordance with its Governing Documents, to
borrow money for the purpose of repairing or improving the Common Elements and,
in aid thereof, to mortgage and encumber the Common Elements; provided,
however, that the rights of such mortgagees in said real properties shall be
subordinate to the rights of the homeowners hereunder; further, provided,
however that, if the Board intends to borrow a sum of money in excess of ten
percent (10%) of the operating budget of the Association then in effect
pursuant to Section 17.1 hereof, the Board shall make a general announcement of
such intent not fewer than thirty (30) days prior to the approval thereof.
3.2 Usage
Rights. The Common Elements shall be
used only for the purposes for which they are intended in providing services
and facilities for the common use and enjoyment of the Owners. There shall be
no obstruction of the Common Elements, nor shall anything be kept or stored on
any part of the Common Elements without the prior written consent of the
Association, except as specifically provided herein. Nothing shall be altered on, constructed in or removed from the
Common Elements except upon the prior written consent of the Association.
3.3 Area Boundaries and Conveyance of Common
Elements. Each Lot shall have the
boundaries set forth in the plats filed in the Registry of Deeds of Moore
County, North Carolina by Declarant for the real property made subject to this
Declaration. The Common Elements owned
by the Association shall remain undivided, and no right shall exist to
partition or divide said Common Elements except as provided herein. The Association shall retain the right to
subject the Common Elements to any type of easements for utilities, roads, and
other necessary purposes as determined and approved by the Board.
3.4 Delegation of Use. Any Owner may delegate, in accordance with the Bylaws and subject to the terms and conditions recited herein, his right of enjoyment to the Common Elements to and his immediate family, guests, invitees, visitors, lessees, tenants, servants, and employees.
ARTICLE IV
TERM
4.1 Term. This Declaration, as amended from time to time,
shall run with the land and shall be binding on all parties and all persons
claiming hereunder until April 1, 2007, at which time—and quinquennially
thereafter—this Declaration shall be automatically extended for successive
periods of five (5) years unless, by the affirmative vote of at least a
Majority of the Aggregate Votes, it is agreed to change—in whole or in
part—this Declaration. Therefore,
notwithstanding Section 21.2 hereof, the Members shall be afforded a decennial
opportunity—to be exercised on April 1, 2007 and every five (5) years
thereafter—to amend this Declaration by the affirmative vote of at least a
Majority—rather than by sixty-seven percent (67%)—of the Aggregate Votes.
4.2 Application. All of the provisions, restrictions, conditions,
easements, covenants, agreements, liens, and charges set forth herein shall
affect each and all of the Lots, shall run with the land, and shall exist and
be binding upon all parties and all persons claiming under them after the date
of recordation hereof unless sooner annulled, amended or modified pursuant to
the provisions hereof.
ARTICLE V
CONSTRUCTION
ON LOTS/RESIDENCES
5.1 Minimum
Requirements. The Owner of a Lot may
build, reconstruct or renovate a Residence thereon subject to the terms,
conditions, and restrictions set forth herein as well as subject to the additional
terms, conditions, and restrictions set forth by the Architectural Review Board
in its Policies and Procedures.
5.1.1 Lot
Configuration. No residential or other
structure shall be constructed, altered, placed or permitted to remain on any
Lot or part of the Property unless the same is constructed upon a defined
Lot. The lay of the Lots as shown on
the plats recorded in the Registry of Deeds of Moore County, North Carolina
shall be adhered to; provided, however, that Declarant may revise and alter (a)
the configuration of Lots owned by Declarant so that additional streets,
roadways or driveways, either public or private, may be opened through any Lot
and (b) the size and shape of any Lot owned by Declarant provided that no
remaining or resulting Lot shall vary from the size of such Lot as shown on the
recorded plat by more than twenty percent (20%) as to the width at street
frontage or by more than fifteen percent (15%) as to the aggregate square
footage of the Lot. More than one Lot
may be used for the erection or placement of a Residence provided that the
location of such structure on said Lot is subject to and conditioned upon the
prior written approval of the Architectural Review Board. Subject to the terms and restrictions
provided herein as well as to the Policies and Procedures, as amended from time
to time, only the following structures shall be erected, altered, placed or
permitted to remain on the Lots herein described: (c) one detached Residence not to exceed two stories in height
exclusive of basement and (d) one garage structure, attached to the remainder
of the Residence,that shall not open to the front street, golf course or lake
unless so approved by the Architectural Review Board.
5.1.2 Building
Contractors for Residences. The Association reserves the
right, at its sole option, for the Architectural Review Board to designate the
criteria for building contractors who may be employed by Owners to construct
homes on a Lot that is the subject of these restrictions. The Architectural
Review Board, at its election, may establish specific criteria for the building
contractors to satisfy construction of homes on the Property. Neither Declarant for the purposes of the
Phase Four Property and the Phase Five Property, the Association nor the
Architectural Review Board shall have any obligation to establish the criteria
for the building contractors and shall not in any manner have any obligation
concerning their performance.
5.1.3 Applicable
Laws and Architectural Review Board Policies.
A Lot
is subject to having constructed on it by its Owner a Residence that meets the
requirements of (a) the Governing Documents and (b) any applicable Federal,
state, county or municipal statute, regulation, law or code. The Architectural Review Board, a standing
committee of the Association, shall have the power to enforce the terms of the
Governing Documents—including, but not limited to, the Policies and
Procedures—related to matters within its jurisdiction by any action including
any type of action in a court of law or equity.
5.1.4 Plans
and Specifications. No building of any type,
outside lighting, outside trash receptacle, berm, fence, wall, hedge or screen
planting shall be erected, placed or altered on the Property until the building
plans, specifications, and plat maps showing the location of such building,
outside lighting, outside trash receptacle, berm, wall, hedge, fence or screen
planting have been approved in writing (a) as to conformity and harmony of
external design and external materials with existing structures in the area and
(b) as to location with respect to topography, ponds, lakes, golf courses, and
finished ground elevation by the Architectural Review Board. No exposed concrete blocks shall be used
above finished ground elevations unless said blocks are covered with brick
veneer, stone or stucco. No asbestos
shingles or asbestos siding of any type or asphalt covering shall be used on
vertical exterior walls unless approved by the Architectural Review Board. In the event that the Architectural Review
Board fails to approve or disapprove such design or location within forty-five
(45) Days after such plans and specifications have been submitted to the
Architectural Review Board, the Board shall assume approval authority—after the
receipts of sufficient assurances from the Architectural Review Board that the
Architectural Review Board had sufficient time for review—and shall approve or
disapprove such plans within thirty (30) Days of assuming such authority.
5.1.5 Site
Plans. The Architectural Review
Board shall approve the location of buildings and other improvements on all
building sites in the subdivision.
Except with the prior written approval of the Architectural Review
Board, no building shall be located on any building site outside the minimum
building setback lines shown on the map to the Lots herein above referred to
which said setback line in general shall be sixty (60) feet from the property
line of the Golf Course Property, fifty (50) feet from the water line of any lake
or from the rear property line of forest lots, thirty (30) feet from the rear
property line in Phase III, forty (40) feet from any front street and thirty
(30) feet—except in Phase III, which will be twenty (20) feet—from any side Lot
or side street line; provided, however, that, these requirements shall not be
deemed to supplant or supercede setback lines established pursuant to plat maps
duly recorded by Declarant prior to the date hereof in the Registry of Deeds of
Moore County, North Carolina. The measurements
for side Lot setbacks referred to herein shall be from the base of the building
foundation; provided, however, that those reasonable eaves or overhangs or
decks—those not in excess of ten (10) feet from the exterior wall of the
Residence structure—shall not be considered.
Side street setbacks and other measurements for setbacks are to be from
the outer edge of eaves, overhangs, and decks.
5.1.6 Square
Footage of Residences. No residential structure
exceeding a total height of thirty-five (35) feet nor with an aggregate area of
less than two thousand (2,000) square feet of heated living space—exclusive of
porches and garage—shall be erected or placed on any Lot. Two-story dwellings shall contain not less
than sixteen hundred (1,600) square feet of heated living space on the first or
ground floor. A second story shall be
defined as any floor level that lies at an elevation of more than five (5)
feet—but fewer than twelve (12) feet—above any other floor level within the
same Residence structure. The total Lot
coverage by structures and impermeable surfaces, including walkways and
driveways, shall not exceed thirty percent (30%) of the total square footage of
the Lot.
5.1.7 Approvals. The Architectural Review Board shall have the right to disapprove
any plans, specifications or details submitted thereto if (a) the Architectural
Review Board deems such plans, specifications, and details not to be in
accordance with all of the provisions established in this Declaration and the
Policies and Procedures, (b) the Architectural Review Board deems the design or
color schemes of the proposed building or other structure not to be in harmony
with the general surroundings of such Lot or the adjacent buildings or
structures, (c) the plans and specifications submitted are incomplete or (d)
the Architectural Review Board deems the plans, specifications or details, or
any part thereof, to be contrary to the interests, welfare or rights of all or
any part of the Property or the owners thereof. The aforesaid conclusions of the Architectural Review Board shall
be in the sole and exclusive discretion of the Architectural Review Board, and
the decisions of the Architectural Review Board shall be final, subject to the
right of the Owner to appeal to the Board pursuant to the Policies and
Procedures. Neither Declarant for the purposes of the Phase Four Property and
the Phase Five Property, the Association, the Architectural Review Board nor
any agent or member thereof shall be responsible in any manner for (e) any defects
in any plans or specifications submitted, revised or approved in accordance
with the foregoing, (f) any structural or other defects in any work done
according to such plans and specifications or (g) the enforcement of any
applicable Federal, state, county or municipal statute, regulation, law, code
or ordinance or other governmental requirement.
5.1.8 Building Permit. No Owner shall obtain a building permit from the applicable municipal agencies without first obtaining all necessary approvals from the Architectural Review Board as set forth in the Policies and Procedures. The Association shall have the right to charge reasonable permit and impact fees upon the submission of applications to the Architectural Review Board for approval of matters within its jurisdiction, and such fees shall be payable by the Owner prior to commencement of any clearing or construction on his Lot.
5.1.9 Certificate of Occupancy. The Planning and Inspections Department of the Village of Pinehurst or its successors and assigns shall not issue a Certificate of Occupancy for a Residence unless and until the Planning and Inspections Department of the Village of Pinehurst or its successors and assigns receives written confirmation from the Architectural Review Board that the Residence complies with all applicable provisions of this Declaration, the Policies and Procedures, and the Rules and Regulations.
5.2 Revisions to Policies
and Procedures. The Architectural Review
Board, subject to the approval of the Board, shall adopt—and, from time to time
and at any time, may amend and revise—such Policies and Procedures as
reasonably necessary (a) to establish, preserve, and promote the highest
aesthetic and architectural standards of the Property and (b) to maintain the
financial value of Lots and Residences thereat and thereon.
ARTICLE VI
CONSTRUCTION POLICIES
6.1 Time Period. The work of constructing, altering or remodeling any
building on any Lot or Lots shall be pursued diligently from the commencement
until the completion thereof and shall be completed within twelve (12) months
from the date of approval by the Architectural Review Board; provided, however,
that the Architectural Review Board may grant an extension on a case-by-case
basis but is under no obligation to do so.
6.2 Grading. All planned Lot grading and filling shall be
approved in advance by the Architectural Review Board. No Lot may be filled to a point higher than
the highest point on the Lot in its natural state.
ARTICLE VII
SEWAGE DISPOSAL AND WATER SYSTEM
7.1 Charges. Owners of Residences must make connection to the central sewage
disposal and water supply systems operated by the Moore County Department of
Public Utilities or its successors and assigns. Such Owners agree to pay any availability, connection or
surcharge fee for water or sewer that may be approved by the North Carolina
Utilities Commission or its successors and assigns prior to connection to such
system. All usage charges of any nature
for the utilities shall be paid by the Owner.
7.2 Connection
Procedure. No permits or approvals for
the construction of improvements on a Lot shall be granted or approved by the
Architectural Review Board unless and until the Owner desiring such approval
shall have made satisfactory contractual arrangements with a licensed plumber
for connection to the central sewage disposal and water supply systems for such
Lot.
7.3 Private Water Wells. Private water wells may be constructed and may only be used for irrigation, landscaping, and heating and cooling purposes, and, upon installation of a private water well, the Architectural Review Board may require that the Owner surround, disguise, and screen the installation thereof.
ARTICLE VIII
USE OF PROPERTY
8.1 Use of Property. The use of the Property shall be in accordance with the following
provisions as long as this Declaration remains in effect.
8.1.1 Residences. Each of the Residences shall be occupied only by the
Owner, his immediate family, guests, invitees, visitors, lessees, tenants,
servants, and employees—and, subject to Section 8.1.10 hereof, shall be used
only as a residence and for no other purpose.
No Residence may be divided or subdivided into a smaller unit nor any
portion thereof separately sold or otherwise transferred. The lease or rental of a Residence to one or
more tenants or lessees for purposes limited to residential purposes, subject
to the other provisions of this Declaration, shall not be considered to be a
violation of this covenant.
8.1.2 Nuisances. No nuisances shall be allowed upon the Property nor any use or
practice that is the source of annoyance to residents or that interferes with
the peaceful possession and proper use of the Property by its residents.
8.1.2.1 Owner’s
Obligations. The Owners shall thus
be responsible for the following maintenance obligations: (a) all Residences and Lots shall be kept in
a clean and sanitary condition, (b) all Residences and Lots shall be maintained
to high aesthetic standards, (c) no rubbish, refuse or garbage shall be allowed
to accumulate in any Residence or on any Lot, (d) no fire hazard shall be
allowed to exist in any Residence or on any Lot, and (e) Lots must be
maintained in a neat and orderly manner and cleared and maintained clear of
dead, diseased, and broken trees, tree limbs, vegetation, and debris.
8.1.2.2 Common
Elements. No damage to or waste of the
Common Elements or any part thereof shall be committed by any Owner—or his
immediate family, guests, invitees, visitors, lessees, tenants, servants,
employees, and agents—and each Owner shall indemnify and hold the Association
and the other Owners harmless against all losses resulting from any such damage
or waste.
8.1.2.3 Violations. No
Owner shall make or permit any use of his Lot or Residence—or make any use of
the Common Elements—that will violate the provisions of the Governing Documents
or any policies of insurance covering the Property.
8.1.3 Failure to Maintain. In the event that an Owner
fails to meet his obligations pursuant to Section 8.1.2.1 hereof, the Association,
after notice to the Owner, shall have the right, privilege, and license to
enter upon the Lot and to undertake and make any and all corrective action and
remediation that may be necessary to meet the obligations of the Owner
thereunder. The cost of such corrective
action and remediation of such conditions shall be charged to the Owner and
shall be due and payable as provided in Article XVIII hereof.
8.1.4 Lawful Use. No immoral,
improper, offensive or unlawful use shall be made of any part of the Property,
and any applicable Federal, state, county or municipal statute, regulation,
law, code or ordinance or other governmental requirement shall be
observed. The expense of complying with
any applicable Federal, state, county or municipal statute, regulation, law,
code or ordinance or other governmental requirement—and the costs of
maintenance, modification or repair of the Common Elements if necessitated
thereby—shall be borne by the Association unless resultant from the misuse,
misconduct or neglect of an Owner—or his immediate family, guests, invitees,
visitors, lessees, tenants, servants, employees, and agents—in which case such
expenses shall be assessed against such Owner.
8.1.5 Rules and Regulations. The Rules
and Regulations shall be binding upon the Owners and their immediate family,
guests, invitees, visitors, lessees, tenants, servants, employees, and agents.
8.1.6 Prior Approval Necessary. No
building of any type, outside lighting, outside trash receptacle, berm, fence,
wall, hedge or screen planting shall at any time be erected or maintained upon
the Property unless specifically approved by the Architectural Review Board
prior to the erection thereof. The
initial landscaping for each Lot must be approved by the Architectural Review
Board. Any annual plants approved for
landscaping by the Architectural Review Board must be cared for by the Owner
and promptly replaced—to the extent that such replacement is seasonally
practicable—as necessary and appropriate in order to maintain conformity with
the original landscaping approved by the Architectural Review Board. It is expressly acknowledged by all parties
concerned that this Article VIII is for the mutual benefit of all Owners and is
necessary for the protection of said Owners.
8.1.7 Parking Areas. No motor vehicle, boat,
trailer, recreational vehicle or other vehicle may be parked, stored or kept
upon the Property except in accordance with Rules and Regulations. The parking spaces located within the Common
Elements shall be for the sole and exclusive use of the Owners. No person shall repair or restore any motor
vehicle, boat, trailer, recreational vehicle or other vehicle upon any portion
of the Common Elements except for emergency repairs thereto and, in such cases,
only to the extent necessary to enable movement thereof to a proper facility.
8.1.8 Waste
Material Containers. No rubbish, trash, garbage or
other waste material shall be kept or permitted upon the Common Elements except
in sanitary containers located in appropriate areas and otherwise in accordance
with rules and regulations adopted by the Association from time to time. Except of such types and in such quantities
as typical and reasonable for personal use, no toxic materials, hazardous
substances or hazardous waste as defined in any applicable Federal, state,
county or municipal statute, regulation, law, code or ordinance or other
governmental requirement shall be released, kept or maintained on any Lot or
portion of the Common Elements.
8.1.9 Signs. Unless prior written
approval is obtained from the Architectural Review Board, no sign shall be
posted on the Common Elements or on any Residence or Lot. No sign shall be posted in any Residence
that will be visible from the exterior of such Residence.
8.1.10 Offensive Trade or Activity. No noxious or offensive trade or activity shall be
carried on upon the Property nor shall anything be done thereon that may be or
become an annoyance or nuisance to the neighborhood. No trade materials or inventories may be stored upon the Property
and no campers, recreational vehicle, motor homes, trucks or tricots, boats
(other than boats that are permitted on the Pinewild lakes) or boat trailers
may be stored or regularly parked on the Property unless garaged and out of
view without prior written approval of the Architectural Review Board. Without prior written approval of the
Architectural Review Board, no business activity or trade of any kind
whatsoever including, but not limited to, the use of any Residence as a medical
or professional office of any kind, a fraternity house, a boarding house or an
antique or gift shop shall be carried on upon the Property.
8.1.11 No Temporary Structures. No structure of temporary character, tent, shack,
trailer, camper, garage or any other outbuilding shall be used on any Lot at
any time as permanent or temporary residence or dwelling except under a
temporary written permit issued in the discretion of the Architectural Review
Board and subject to specific limitations of such use including, but not limited
to, the duration of such use; provided, however, the Architectural Review Board
may grant permission—under a temporary written permit issued in the discretion
of the Architectural Review Board and subject to specific limitations of such
use including, but not limited to, the duration of such use—for temporary
buildings or structures for the storage of materials during construction by the
parties doing such work.
8.1.12 No Livestock. No livestock of any description may be permitted—except, subject to
Section 24.11 hereof, for naturally visting or naturally resident animals—or
kept on the Property with the exception of dogs, cats, and other animals that
are bona fide household pets and that do not make objectionable noise or
constitute a nuisance or inconvenience to Owners of other Lots. Dogs, cats, and other animals must be
leashed when off of their respective master’s Lot. Upon receipt of a written complaint regarding any animal, the
Association may notify the master of such animal of the complaint and, after
affording the master an opportunity to be heard, impose such restriction upon
the master regarding such animal as may be reasonably necessary to satisfy said
complaint and ensure compliance herewith.
No raising, breeding, training or dealing in dogs, cats or any other
animals shall be permitted on or from the Property.
8.1.13 Leasing.
The
Lots and Residences thereon shall not be leased or rented on a short-term basis
for any period of less than six (6) consecutive months in duration without the
prior written consent of the Association. Nothing contained in this Section,
however, shall be deemed to require the approval of the Association to the
renting by Declarant of elements of its Property for short-term periods to its
bona fide guests for sales and promotional purposes.
8.1.14 Off-Street Parking. Adequate off-street parking shall be provided by the Owner of each
Residence for the parking of automobiles owned by such Owner and his immediate
family, guests, invitees, visitors, lessees, and tenants, servants, and
employees. The Owners—and their
respective immediate family, guests, invitees, visitors, lessees, tenants,
servants, employees, and agents—of Residences or of other improvements under
construction shall park their automobiles or other vehicles on the Lot on which
construction is or shall be underway rather than on the roads and streets on
the Property.
8.1.15 Golfers Privileges. All Owners—and their
respective immediate family, guests, invitees, visitors, lessees, tenants,
servants, employees, and agents—shall extend to any and all golfers lawfully
using the Golf Course Property the courtesy of allowing such golfers to
retrieve any and all errant golf balls on any Lot.
8.1.16 Boathouses. No
boathouses or bathhouse shall be permitted on the Property. A private dock, pier, raft, landing stage or
other structure may be erected or maintained at or upon the shoreline of any
Lot having direct water frontage or upon land under water in front of such Lot
with the prior written approval of the Architectural Review Board.
8.1.17 Usage Rights. No
Owner shall have any right to use the Common Elements unless the Owner has paid
all applicable fees and assessments established by the Association.
8.1.18 Refuse. No Lot shall be used or maintained as a dumping ground for rubbish, refuse, yard waste or garbage. Garbage or other waste shall be kept in sanitary containers. Burning of trash or refuse is prohibited on all Lots. No hazardous substance, waste or other toxic material shall be dumped, buried, injected, treated or disposed of on any Lot or any portion of the Common Elements.
8.1.19 Laundry.
All
drying of laundry must be done indoors or in an area screened from view from
any other Lot, street or road or the Golf Course Property.
8.1.20 Delegation of Use. Any Owner may delegate, in accordance with the Governing Documents, his right of enjoyment to the Common Elements to his immediate family, guests, invitees, visitors, lessees, and tenants, servants, and employees.
ARTICLE IX
EASEMENTS
9.1
Utility and Drainage
Easement. Declarant and the
Association, as applicable, reserve the right (a) to construct and maintain
utilities on the streets and roads on the Property either above or below ground
and to make all reasonable slopes for cuts or fills upon the Lots shown on the
survey map in the original grading of said streets and roads and (b) to
construct, dredge or do any reasonable work required for the lakes, ponds, and
the Golf Course Property irrigation system; provided, however, that, upon completion of such activities pursuant
hereto, Declarant or the Association, as applicable, shall use
reasonable efforts to restore the surface
area of the Lot or other property that was disturbed pursuant hereto to the
condition in which it existed prior to the disturbance thereto.
9.1.1
Reservation of Easements. Declarant reserves perpetual
utility easements under, over, and across a strip five (5) feet—unless
otherwise noted on the survey map herein referenced, and, in such case, said
survey map shall govern—in width adjacent to and along the side yard lines of
each Lot for the purpose of placing, laying, erecting, constructing,
maintaining, and operating as well as of authorizing the placement, laying,
erection, construction, maintenance and operation of utilities. Said utilities shall include, without
limitation, sewage, water (including irrigation), electricity, gas, cable
television, telephone, and telegraph.
9.1.2
Utilities Easements.
Declarant further reserves perpetual easements under, over, and
across a strip ten (10) feet—unless otherwise noted on the survey map herein
referenced, and, in such case, said survey map shall govern—in width adjacent
to and along the front and back yard lines of each Lot for the purpose of
placing, laying, erecting, constructing, maintaining and operating utilities
and drainage systems. Said utilities
shall include, without limitation, sewage, water (including irrigation),
electricity, gas, cable television, telephone, and telegraph.
9.1.3
Drainage. No
change in the natural drainage of a Lot shall be made by any Owner without the
prior written approval of the Architectural Review Board.
9.1.4
Perimeter Fence.
The Association may, at its sole election, erect perimeter fencing
for security purposes around the outside boundaries of the Property.
9.2 No Interest in
Utilities. The interest conveyed by Declarant to any of
the Lots by contract, deed or other conveyance shall not in any event be held
or construed to include title—to the extent that Declarant retains such
title—to the water, gas, cable television, sewer, electric light, power,
telegraph and telephone lines, poles, conduits or any other utility or
appurtenances thereto constructed by Declarant, its agents or by any utility
company along or upon said Lots—or any part thereof—to serve said Lots. The right to sell, convey or lease water and
sewer lines and their appurtenances erected by or on behalf of Declarant—to the
extent that Declarant retains such title—is hereby expressly reserved to
Declarant.
9.3 Easement for Use of Streets. The Association hereby grants, conveys, assigns, and
sets over to every Owner—and his immediate family, guests, invitees, visitors,
lessees, tenants, servants, employees, and agents—the right of ingress and
egress over, upon, and across the private roads within the Property and they
shall have the use of said roads for access to and from public highways
adjoining the Property. The
Association reserves the right at any time
hereafter to dedicate and to convey said roads to any appropriate governmental
authority or to the public upon the affirmative vote of sixty-seven percent
(67%) of the Aggregate Votes in a regular or special meeting of the Association
duly called and constituted. The
presence of Members or of proxies entitled to cast ten percent (10%) of the
Aggregate Votes shall constitute a quorum for such a meeting for purposes of
the adjournment thereof.
9.4 Antennas and Flagpoles.
9.4.1 Master
Antennas. The Association may locate
master antennas or cable television facilities upon certain portions of the
Property. Any such antennas and
connections shall be maintained in good order and repair by the
Association. To the extent required to
effectuate the foregoing plan, there shall be an easement in favor of each Lot
for the purpose of providing connection of that Lot with the cable television
facility or the master antenna most convenient thereto. Each Lot shall be subject to easements
thereto and therefor. The Common
Elements shall be subject to a further easement for the placement thereon by
the Association of such master antennas, cable television facilities, and
appurtenances as well as for the installation and maintenance thereon of
connections to serve any Lot. All of
the foregoing easements are granted and reserved subject to the condition that
their use and enjoyment shall not materially interfere with the use, occupancy
or enjoyment of all or any part of the Lot and the Common Elements servient to
such easements or to which such easements are appurtenant.
9.4.2 Private Antennas, etc.
Subject to any applicable Federal, state, county or municipal
statute, regulation, law, code or ordinance or other governmental requirement,
no mast, tower, pole, antenna, or aerial shall be permanently erected,
constructed or maintained on any Residence or Lot in such a manner and location
as to be visible from the outside of such Lot.
However, upon the installation of a permitted reception device, the
Architectural Review Board may require that the Owner surround, disguise, and
screen the installation to the maximum extent permitted pursuant to any
applicable Federal, state, county or municipal statute, regulation, law, code
or ordinance or other governmental requirement.
9.4.3 Flagpoles. The
erection, construction, and maintenance of residential-scale flagpoles shall be
permitted subject to the approval of the Architectural Review Board for
location and size.
9.5 Owner’s Right to Ingress
and Egress. Each Owner shall have the right to ingress
and egress over, upon, and across the Common Elements necessary for access to
his Lot, and such right shall be appurtenant to and pass with the title to each
Lot.
9.6 Inspection and
Maintenance. The Board and any other
person so authorized by the Board shall have an access easement across, over,
and under the Property for ingress, egress, and access to the Common Elements
for the purposes of inspection, maintenance, repair or replacement thereof.
9.7 Other Easements. In addition to the easements reserved herein, Declarant and the
Association hereby reserve a five (5) foot easement across the backyard lines
of all Lots located on the Golf Course Property and along the railroad
right-of-way for a jogging, walking, and exercise trail.
ARTICLE X
TRAFFIC
REGULATION
10.1 Automobiles. The Association shall establish provisions of the Rules and Regulations governing the operation of vehicles of any sort used by any person on any portion of the Common Elements. The Association shall establish and maintain traffic control and safety equipment, markings, and signage consistent with such regulations. The Association shall enforce such regulations and shall thus establish and impose reasonable remedies for violations together with an appeal procedure therefor. The Association may assign some or all of the authority granted by this Article to any appropriate governmental authority.
10.2 Boats. Declarant may establish rules and regulations governing the
operation of vehicles of any sort used by any person on any portion of the
lakes and ponds to which Declarant holds record title. Declarant may establish and maintain traffic
control and safety equipment, markings, and signage consistent with such
regulations. Declarant may enforce such
regulations and may thus establish and impose reasonable remedies for violations
together with an appeal procedure therefor.
Declarant may assign some or all of the authority granted by this
Article to any appropriate governmental authority.
ARTICLE XI
ENFORCEMENT
11.1 Violation of Declaration.
11.1.1 Compliance
Obligation. Each Owner—and his immediate
family, guests, invitees, visitors, lessees, tenants, servants, employees, and
agents—shall be bound to comply with the Governing Documents. The failure to do so shall be grounds for an
action to recover damages and to obtain injunctive and other equitable relief
as hereinafter set forth.
11.1.2 Violations. If the parties hereto, the Owners, or
any subsequent third parties or their successors or assigns shall violate or
attempt to violate any of the provisions of the Governing Documents, it shall
be lawful for Declarant, the Association or any Owner to enforce the provisions
of this Declaration and thus to prosecute proceedings at law or in equity
against the Person violating or attempting to violate any such provision in
order to prevent the Person from so doing as well as to recover damages or
other expenses arising from said violation.
11.1.3 Enforcement. The Association has the authority, at its sole
option and discretion, to enforce the provisions of the Governing Documents
pursuant to the exercise of its business judgment—including, but not limited
to, (a) its determination that such term, condition or covenant recited herein
is likely to be construed as inconsistent with any applicable Federal, state,
county or municipal statute, regulation, law, code or ordinance or other
governmental requirement and (b) cases in which the Board reasonably determines
that the position of the Association is not of sufficient strength to justify
enforcement action—provided, however, that neither the Association nor its
designees including, but not limited to, the Architectural Review Board shall
have the specific obligation to enforce the covenants, conditions, and
restrictions set forth herein and the regulations adopted pursuant hereto nor
shall the Association nor its designees be liable for any failure to enforce
the covenants, conditions, and restrictions set forth herein and the
regulations adopted pursuant hereto.
Any such determination shall not be construed a waiver of the right of the
Association to enforce such provision under any circumstances or prevent the
Association from enforcing any other covenant, restriction or rule.
11.1.4 Sanctions for Violations. The Board and its designees including, but not limited to, the Architectural Review Board may impose sanctions for violations of the provisions of the Governing Documents after compliance with the notice and hearing procedures set forth in Article XXII of this Declaration. The sanctions include, but are not limited to, the remedies hereinafter set forth.
11.1.4.1 Fine. If any Person other than an
Owner—including, but not limited to, his immediate family, guests, invitees,
visitors, lessees, tenants, servants, employees, and agents—violates the
provisions of the Governing Documents and the Board imposes a fine resultant
therefrom, the fine shall be assessed against the violator—except in the event
of a builder or contractor that submitted a construction deposit to the
Architectural Review Board, if such a program be in effect, from which such
fine shall be deducted—provided, however, if the fine is not paid by the
violator within the time period set by the Board, the fine shall be charged to
the Owner and shall be due and payable as provided in Article XVIII hereof.
11.1.4.2 Liens.
The
Board may file liens in the Registry of Deeds of Moore County, North Carolina
for nonpayment of any assessments or fees as well as to recoup costs incurred
in actions undertaken pursuant to Section 8.1.3.
11.1.4.3 Suspension
of Voting Rights. The Board may suspend an
Owner’s right to vote in the proceedings of the Association.
11.1.4.4 Usage
Rights. The Board may suspend any
Person’s right to use any recreational facilities within the Common Elements;
provided, however, that nothing herein shall authorize the Board to limit the
rights of an Owner to ingress or egress to and from his Lot.
11.1.4.5 Suspension
of Services. The Board may suspend any
services provided by the Association to an Owner or the Owner’s Residence or
Lot if the Owner is more than thirty (30) Days delinquent in paying any
assessment or any other fine or charge due to the Association.
11.2 Invalidity. If any provision of this Declaration is declared
invalid by any tribunal, then such provision shall be deemed automatically
modified to conform to the requirements for validity as declared at such time
and, as so modified, shall be deemed a provision of this Agreement as though
originally included herein. In the
event that the provision invalidated is of such a nature that it cannot be so
modified, the provision shall be deemed deleted from this Declaration as though
the provision had never been included herein. In either case, however, the
remaining provisions of this Declaration shall remain in effect.
11.3 Laws and Ordinances. This Declaration shall be in addition to any
applicable Federal, state, county or municipal statute, regulation, law, code
or ordinance or other governmental requirement that may be applicable to the
Property. In the event that such
applicable Federal, state, county or municipal statute, regulation, law, code
or ordinance or other governmental requirement may be more restrictive than the
terms of this Declaration, said applicable Federal, state, county or municipal
statute, regulation, law, code or ordinance or other governmental requirement
shall control.
11.4 Cumulative Remedies. All remedies set forth in the Governing Documents shall be cumulative of any remedies available at law or in equity. In any action to enforce the provisions of the Governing Documents, the Association shall, if it shall substantially prevail therein, be entitled to recover all costs and expenses including, but not limited to, reasonable attorney’s fees, reasonable expenses, and court costs related to said action.
11.5 Other Enforcement. The Association, by contract or other agreement, may enforce any
applicable Federal, state, county or municipal statute, regulation, law, code
or ordinance or other governmental requirement, if applicable, and may further
permit Federal, state, county or municipal governmental authorities to enforce
any applicable Federal, state, county or municipal statute, regulation, law,
code or ordinance or other governmental requirement on the Property for the
benefit of the Association and its Members.
11.6 Waiver. The failure of the
Association, the Declarant or any Owner to enforce any covenant, restriction or
other provision of the Governing Documents shall not constitute a waiver of the
right to do so thereafter.
ARTICLE XII
VARIANCES
12.1
Variances. The Board shall be entitled to allow
reasonable variances and adjustments of the terms of this
Declaration—including, but not limited to, height, size, and setback
requirements—in order to overcome practical difficulties and prevent unnecessary
hardships in the application of the regulations contained herein; provided,
however, that the approval of such variances conform to the intent and purposes
hereof and further provided that, in every instance, such variance or
adjustment shall not be materially detrimental or injurious to other property
or improvements located on the Property.
ARTICLE XIII
INSURANCE AND
CASUALTY LOSSES
13.1 Insurance. The Board shall maintain such policies of insurance in such
coverages as the Board, in its sole and exclusive discretion, shall determine;
provided, however, that the Board shall maintain policies of insurance against,
inter alia, (a) loss or damage to the Common Elements, (b) liability for injuries to others
resultant from use of the Common Elements,
(c) liability that may be incurred in service to the Association, and
(d) such other coverages required by the General Statutes of the State of North
Carolina. The Board, if possible, shall
appoint an Insurance Committee consisting of not fewer than two (2) Owners,
each of whom shall possess significant prior experience in the insurance
industry, to advise the Board on matters related to insurance as the Board
deems appropriate; provided, however, that if the Board is unable to find two
(2) suitable Owners for appointment to an Insurance Committee, the Board shall
retain insurance consultants to advise the Board in the manner hereinafter set
forth for the Insurance Committee. The
Insurance Committee shall advise the Board on, inter alia, the
appropriate types and amounts of insurance coverages and the company or
companies from which to purchase the policies of insurance.
13.2 Review of Coverage. The Board shall conduct an insurance review from time to time and
at any time but in no case less frequently than decennially.
13.3 Owner’s Insurance. It shall be the individual responsibility of each
Owner, at his own expense, to provide insurance in those coverages as he
determines to be appropriate on his Lot and Residence.
13.4 Use of Proceeds. Any loss recovery amounts paid to the Association
shall be used to defray the cost of repairs or replacements to the Common
Elements so insured; provided, however, that, if the cost of repairs or
replacements exceeds the amount of loss recovery, such excess costs may be
raised pursuant to (a) a Special Assessment or (b) an appropriation from a
reserve fund—or any other fund that may be established for the purpose of
providing for the maintenance, repair or replacement of any of the Common
Elements—as the Board, in its sole and exclusive discretion, shall determine.
ARTICLE XIV
MAINTENANCE/REPAIR
14.1
Lots and Residences.
14.1.1
Maintenance
Obligations. Each Owner, at his own
expense, shall keep all of his Lot and Residence—including, but not limited to,
all exterior walls, roofs, equipment and fixtures therein and thereon,
landscaping, water, storm drainage, and sanitary sewer and other utility lines
serving only his Lot—in good order, sanitary condition, and good state of
repair and in a clean, attractive, orderly, and safe state of appearance.
14.1.2 Responsibility. Each Owner, at his own expense, shall be
responsible for all redecorating and painting necessary to preserve or maintain
the good condition and appearance of the Residence, the patios, terraces,
balconies, verandas, and all other improvements and landscaping located on the
Lot or appurtenant to the Residence.
14.1.3 Damages
to Common Elements. Each Owner shall be
responsible for all damages to any of the Common Elements that may result from
the neglect, negligence, misuse or misconduct of such Owner—and that of his
immediate family, guests, invitees, visitors, lessees, tenants, servants,
employees, and agents—and the cost of repair of any such damage shall be
charged to the Owner and shall be due and payable as provided in Article XVIII
hereof.
14.2 Association Responsibilities for
Maintenance.
14.2.1 Common Elements. The
Association shall maintain and keep in good condition, order and repair the
Common Elements.
14.2.2 Common Expenses. The
Association may, as a Common Expense, (a) maintain other property and
improvements that it does not own including, but not limited to, property
dedicated to the public as well as fences, walls, entry features or signs that
designate the entrance to Pinewild Country Club of Pinehurst and (b) provide
maintenance or services related to such property over and above the level
provided by the owner thereof if the Board of Directors determines that such
maintenance is necessary or desirable to maintain the general appearance of
Pinewild Country Club of Pinehurst and serves to maintain or increase the
property values thereof and thereat.
14.2.3
Continuous Operation. The
Association shall maintain the facilities and equipment within the Common
Elements in continuous operation—except for any periods necessary, as
determined in the sole discretion of the Board, to perform required maintenance
or repairs—unless at least sixty-seven percent (67%) of the Aggregate Votes are
cast in favor of the discontinuation of the operation of such facilities and
equipment at a regular or special meeting of the Association duly called and
constituted. The presence of Members or
of proxies entitled to cast ten percent (10%) of the Aggregate Votes shall
constitute a quorum for such a meeting for purposes of the adjournment
thereof.
14.2.4
Allocation. Except as otherwise
specifically provided herein, all costs associated with maintenance, repair,
and replacement of the Common Elements and those items set forth in Section
14.2.2 hereof shall be a Common Expense to be allocated amongst all Owners as
part of the General Assessment without prejudice to the right of the
Association to seek reimbursement from the owners of or other parties
responsible for all costs associated with (a) those items set forth in Section
18.2 hereof and (b) any contract, lease or agreement for maintenance thereof
duly entered into by the Association.
ARTICLE XV
CONDEMNATION
15.1 General. Whenever all or any part of the Common Elements
shall be taken by any authority having the power of condemnation or eminent
domain, each Owner of a Lot affected thereby shall be entitled to notice
thereof, and the Owners of those Lots wholly or partially proposed to be taken
thereby shall be entitled to participate in the proceedings incident thereto unless
otherwise prohibited by law. The award
made for such taking shall be payable to the affected Owners and to the
Association in proportion to the reduction in value of the property as
determined by the condemning authority or, if such allocation is not made, by a
certified real estate appraiser mutually selected by the affected Owners and
the Association. The Common Expenses
shall be reallocated to the remaining Lots based on their respective interests
in the Common Elements.
15.2 Common Elements. If the aforesaid taking includes any part of the Common Elements
on which improvements were constructed, the Board of Directors shall, if
reasonably practical, replace such improvements on remaining real property
available in the Common Elements or on real property purchased for such
purposes in the discretion of the Board unless at least sixty-seven percent
(67%) of the Aggregate Votes shall be cast otherwise in a regular or special
meeting of the Association duly called within thirty (30) Days of the decision
of the Board related thereto. The
presence of Members or of proxies entitled to cast ten percent (10%) of the
Aggregate Votes shall constitute a quorum for such a meeting for purposes of
the adjournment thereof. The
Association shall alternatively treat the funds as a surplus pursuant to
Section 18.2 hereof.
ARTICLE XVI
THE ASSOCIATION AND OWNERS
16.1 Association. The Pinewild Maintenance Corporation d/b/a the Pinewild Property Owners Association is—and shall remain—a nonprofit corporation organized and operated pursuant to the North Carolina Nonprofit Corporation Act codified in Chapter 55A of the General Statutes of North Carolina as amended.
16.2 Membership. Each Owner shall be a Member of the Association.
Membership shall be appurtenant to and may not be separated from any Lot that
is subject to assessment.
16.3 Classes of Membership. The Association shall have one (1) class of membership.
16.4 Responsibilities of
Association. The Association, subject to the rights and
obligations of the Owners set forth herein and further subject to the rights
and obligations of Declarant set forth herein, shall be responsible for the
management, maintenance, operation, and control of the Common Elements and thus
shall be charged with (a) the exclusive management and control of the Common
Elements and all improvements thereon (including furnishings and equipment
related thereto) and (b) the maintenance, preservation, operation, replacement
and repair of all streets, common parking areas, storm drainage, sanitary sewer
and other utility lines, walks and all other portions of the Common Elements
except those areas the Owners are required to maintain pursuant to the terms
recited herein. The Association shall be the primary
entity—but not the exclusive entity and nothing herein shall be construed to
abridge the rights of the Owners to enforce the provisions of this Declaration
in any court of law or equity having jurisdiction thereof—responsible for
enforcement of this Declaration, the Rules and Regulations, and the Policies
and Procedures; provided, however, that neither the Association nor its
designees including, but not limited to, the Architectural Review Board shall
have the specific obligation to enforce the covenants, conditions, and
restrictions set forth herein and the regulations adopted pursuant hereto nor
shall the Association nor its designees be liable for any failure to enforce
the covenants, conditions, and restrictions set forth herein recited herein and
the regulations adopted pursuant hereto. The Association shall perform its functions in accordance with the
Governing Documents and any applicable Federal, state, county or municipal
statute, regulation, law, code or ordinance or other governmental requirement.
16.5 Services. The Association may obtain and pay for the services of (a) any person or entity to manage its affairs or any part thereof to the extent that it deems advisable and (b) such other personnel as the Association shall determine to be necessary or desirable for the proper operation of the Common Elements whether such personnel are furnished or employed directly by the Association or by any person or entity with whom or which it contracts. The Association may obtain and pay for legal and accounting services necessary or desirable in connection with the discharge of its rights and obligations pursuant to this Declaration. The Association may arrange with others to furnish water, trash collection, snow removal, sewer service, and other common services to each Lot or Residence.
16.7 Personal Property for
Common Use. The Association may from
time to time acquire and hold tangible and intangible personal property and may
dispose of the same by sale or otherwise.
16.8 Rules and Regulations. The Association may adopt—and, from time to time and at any time,
may amend and revise—reasonable rules and regulations governing the use of the
Existing Property (hereinafter the “Rules and Regulations”); provided, however,
that the Rules and Regulations shall be consistent with the rights and duties
established by this Declaration. The
Rules and Regulations shall be maintained by the Secretary of the Association
and copies thereof shall be furnished to all Owners upon request. The Rules and Regulations shall be binding
upon the Owners—and their immediate family, guests, invitees, visitors,
lessees, tenants, servants, employees, and agents—until and unless such Rules
and Regulations are specifically amended, overruled or cancelled in a regular
or special meeting of the Association duly called and constituted by the
affirmative vote of sixty-seven percent (67%) of the Aggregate Votes. The presence of Members or of proxies
entitled to cast ten percent (10%) of the Aggregate Votes shall constitute a
quorum for such a meeting for purposes of the adjournment thereof.
16.9 Implied Rights. The Association may exercise any other right, power,
and privilege expressly granted by this Declaration or by any applicable
Federal, state, county or municipal statute, regulation, law, code or ordinance
or other governmental requirement as well as every other right, power or
privilege (a) reasonably implicit in the rights, powers, and privileges
expressly granted by this Declaration or by any applicable Federal, state,
county or municipal statute, regulation, law, code or ordinance or other
governmental requirement and (b) reasonably implicit in the existence of any
right, power or privilege expressly granted by this Declaration or by law, and
(c) reasonably necessary to effectuate any right, power or privilege expressly
granted by this Declaration or by law.
Except as otherwise specifically provided in this Declaration, all
rights, powers, and privileges of the Association may be exercised by the Board
without a notice to or vote of the Members.
16.10
Proxies. The use of proxies for all meetings and matters
related to the business of the Association shall be permitted to the maximum
extent allowed under any applicable Federal, state, county or municipal
statute, regulation, law, code or ordinance or other governmental
requirement. Every proxy shall be in
writing and shall specify Lot number and shall be signed by the Member(s) or
his authorized agent.
16.11 Records. The Members shall be entitled to all those rights,
subject to the applicable provisions of the Rules and Regulations, to inspect
the records of the Association as provided for pursuant to any applicable
Federal, state, county or municipal statute, regulation, law, code or ordinance
or other governmental requirement.
ARTICLE XVII
COMMON
EXPENSES
17.1 Budget. Not later than the first day of November of each
succeeding year, the Board shall prepare a proposed budget for the maintenance
and operation of the Common Elements for the succeeding calendar year
(hereinafter the “Budget”) and shall therein estimate the amount of Common
Expenses to be paid for such year. The
amount of Common Expenses so determined shall be allocated and assessed by the
Board among the Owners according to the Regime in which the Owner’s Lot is
located. The Regime in which a Lot is
located shall be determined by reference to plat maps filed by Declarant and
recorded in the Registry of Deeds of Moore County, North Carolina. The Annual Assessment for all unimproved
Lots within a single Regime shall be in an identical amount and the Annual
Assessment for all Lots upon which a completed Residence was erected within a
single Regime shall be in an identical amount; provided, however, that (a) the
Annual Assessment for unimproved Lots and the Annual Assessment for Lots upon
which a completed Residence was erected may be a different amount and (b)
different Regimes may, in the sole discretion of Declarant, maintain different
levels of assessment due to the location of the Common Elements within the
Regime or the usage thereof by the Owners of Lots within the Regime. Upon the transfer of the Common Elements
associated with such Regime to the Association, however, the Association shall
not be bound to the amount of the Annual Assessment levied thereon by Declarant
and shall be entitled to adjust, restate, and recalculate the assessment
applicable to the Regime to reflect the financial obligations of the
Association.
17.2 Common Expenses. The Common Expenses shall include, but not be
limited to, the following (hereinafter the “Common Expenses”):
17.2.1 General
Obligations. Fees and expenses of
managing and administering the Association and maintaining the Common Elements;
17.2.2 Utilities. Expenses of utility services for the
Common Elements, including water, gas, electricity, and sewer;
17.2.3 Insurance. The costs of all insurance premiums on all policies
of insurance obtained by the Board pursuant to this Declaration;
17.2.4 Rent. All rental and other payments required
to be made for any real property or equipment that is hereafter leased or
rented for the use and benefit of the Association;
17.2.5 Working
Capital. Amounts determined by the
Board to be reasonably required as working capital of the Association, for a
general operation reserve, for a reserve fund for replacements, for
deficiencies arising from unpaid assessments, and such amounts as may be
required for the purchase or lease by the Board or its designee, corporate or
otherwise, on behalf of all Owners of any Lot that is to be sold at a
foreclosure or other judicial sale;
17.2.6 Special
Assessments. Special Assessments for
capital improvements as provided for hereinafter;
17.2.7 Taxes.
Any
ad valorem real property taxes and Special Assessments affecting the Common
Elements that are not assessed upon the Owners separately;
17.2.8 General
Welfare. Fees and expenses for the
promotion of the health, safety, and welfare of the residents of the Property;
17.2.9 Maintenance. Maintenance and operation expenses related to the
Common Elements; provided, however, the Association may contract—upon terms and
conditions acceptable to the Association—with an Owner for the assumption by an
Owner of the maintenance of the road or street frontage adjacent to the Owner’s
Lot.
17.2.10 Facilities. Costs and expenses for the acquisition, improvement,
repair, and maintenance of the real property, services, and facilities owned or
acquired by the Association;
17.2.11 Managers. Costs and expenses for the employment of third party
managers for the Common Elements, accountants, attorneys and other
professionals to represent the Association when necessary;
17.2.12 Bonds. Costs and expenses for the procurement and
maintenance of fidelity and performance bonds for its officers, agents and
employees; and
17.2.13 Other. All other amounts necessary to carry out the
responsibilities of the Association under the terms of this Declaration.
ARTICLE XVIII
ASSESSMENT
18.1 Notification of
Assessments. The Board shall, based on
the Budget, fix the amount of the Annual Assessment against each Lot and its
respective Owner at least thirty (30) Days in advance of each Annual Assessment
period. Written notice of the Annual
Assessment, along with a copy of the Budget, shall be sent to every Owner
subject thereto. Annual Assessments are
due with payment in full on the first day of each calendar year. The
Association shall, upon request and for a reasonable charge, furnish a
certificate signed by an officer of the Association setting forth whether the
assessments on a Lot have been paid.
Notwithstanding the foregoing, however, in the event the Board fails for
any reason so to fix the amount of the Annual Assessment, then, and until such
time as the Annual Assessment for such year shall have been fixed, an Annual
Assessment equal to the amount of the last such Annual Assessment against each
Lot shall be deemed to have been imposed as of the first day of such calendar
year and shall be payable in full.
18.2
Liens and Obligations. Each Owner of a Lot, by acceptance of a deed therefor, whether or
not it shall be so expressed in such deed, is deemed to covenant and agree to
pay to the Association, pursuant to the terms recited herein, the (a) Annual
Assessments or charges (hereinafter the “Annual Assessment”) and (b) such
additional assessments to be established and collected as hereinafter provided
(hereinafter the “Special Assessment”).
The Annual Assessments and Special Assessments together with any charges
assessed for late payments—including, but not limited to, interest, fees,
reasonable attorney’s fees, reasonable expenses, and court costs related to
said action—shall be a charge on the Lot and shall be a continuing lien, as
hereinafter provided, upon the Lot against which each such assessment is made;
provided, however, that this personal obligation for the delinquent assessments
shall not pass to his successors or assigns unless expressly assumed
thereby. Each such assessment, together
with any charges levied for late payment, shall also be the personal obligation
of the Person who was the Owner of such Lot at the time that the assessments
fell due. The amount so assessed by the
Association against each Lot for each such calendar year shall be a lien, as
provided herein, against the Lot owned by such Owner at the time that the
assessments fell due. If said Annual
Assessment proves inadequate for any such year for any reason, including
nonpayment of any Owner’s assessment, the Board may, at any time, levy a
Special Assessment that shall be assessed against the Owners in proportion to
their Annual Assessments as provided in Articles XVII and XVIII hereof. Any such Special Assessment shall be a lien
against the Lot as of the date specified in the notice of such Special
Assessment. Each Owner shall pay any
assessment against his Lot or Residence to the Association promptly upon the
levy thereof. If the aggregate of all
assessments made hereunder result in a surplus for any such calendar year, then
the Board may credit such surplus to a reserve fund for maintenance of the
Common Elements. The Board may take into consideration the existence and amount
of such reserve fund when establishing the amount of assessments for succeeding
calendar years. Upon the conveyance of
a Lot from Declarant to an Owner, or upon the occupancy of a Residence,
whichever first occurs, the Owner shall be liable for and be obligated to pay
any annual and special assessment, that would otherwise have been payable on
said Lot had it not been owned by Declarant; provided, however, that the
assessment so payable by the Owner shall not exceed an amount equal to the
total annual and special installments assessed against said Lot or Residence
multiplied by a fraction of which the denominator is three hundred sixty-five
(365) and of which the numerator is the number of Days remaining in the year in
which said conveyance takes place.
18.3 Limitation on Assessments. The Annual Assessment shall not be increased over the Annual Assessment levied in the prior calendar year by more than the lesser of (a) five percent (5%) of the Annual Assessment of the prior calendar year or (b) the increase, if any, as expressed in percentage terms, in the Consumer Price Index, U.S. City Average, All Items, Seasonally Adjusted (Base Period 1982-84=100) as published by the Bureau of Labor Statistics of the United States Department of Labor—or, if such index is discontinued, the replacement therefor as designated thereby—for the twelve-month period precedent to June 30 of the prior year; provided, however, that (a) the Annual Assessment can be increased in excess of the limitations set forth herein upon the affirmative vote at least sixty-seven (67%) percent of the Aggregate Votes at a regular or special meeting duly called and constituted—the presence of Members or of proxies entitled to cast ten percent (10%) of the Aggregate Votes shall constitute a quorum for such a meeting for purposes of the adjournment thereof—and (b) this limitation upon the increase in the Annual Assessment shall not in any manner restrict, limit, modify or amend or be construed to restrict, limit, modify or amend the amount of a Special Assessment that may be levied by the Board as provided hereinafter.
18.4 Special Assessments for
Capital Improvements. In addition to the Annual
Assessments, the Association may levy Special Assessments for the purpose of
paying, in whole or in part, the cost of construction of any new improvement or
reconstruction or replacement of any existing improvement within the Common
Elements and the cost of any fixtures or personal property relating thereto;
provided, however, that such Special Assessment shall be subject to the prior
affirmative vote of sixty percent (60) of the Aggregate Votes at a regular or
special meeting duly called and constituted.
Written notice of any meeting called to authorize a Special Assessment
shall be sent to all Members not fewer than thirty (30) Days nor more than
sixty (60) Days in advance of the meeting.
At the meeting, the presence of
Members or of proxies entitled to cast ten percent (10%) of the Aggregate Votes
shall constitute a quorum for purposes of adjournment thereof. If the required quorum is not present,
another meeting may be called subject to the same notice requirement, and the
required quorum at the subsequent meeting shall be one-half (½) of the required
quorum at the preceding meeting. No
such subsequent meeting shall be held more than sixty (60) Days following the
preceding meeting.
18.5 Collection. The Board shall take prompt action to collect the
full amount of all fees, charges, assessments and other amounts including any
installment related thereto due from any Owner that remain unpaid for more than
ten (10) Days from the respective due date thereof. Each Owner failing to pay any amounts due and payable hereunder
shall be obligated to pay interest thereon and applicable late fees, from the
due date thereof, at the highest rate that may lawfully be contracted for under
any applicable Federal, state, county or municipal statute, regulation, law,
code or ordinance or other governmental requirement together with all costs and
expenses including, but not limited to, reasonable attorney’s fees, reasonable
expenses, and court costs related to said action incurred by the Association in
any proceeding brought to collect such unpaid amounts. Notwithstanding the foregoing, however,
nothing herein shall be construed to obligate the Board to bring any legal
action or to prosecute any such action to a final conclusion if it is
determined by the Board, in its sole discretion, that it would be in the best
interest of the Association to forego, delay or discontinue any such legal
proceeding. No such Owner may avoid
liability for the assessments provided for in this Declaration by reason of
nonuse of the Common Elements or abandonment of his Lot.
18.6 Lien for Assessments.
18.6.1 Lien.
All
sums assessed to any Lot pursuant to this Article XVIII or any other provision
of this Declaration as well as all fees, charges, and amounts payable by the
Owner of said Lot—together with interest thereon as provided herein—shall be
secured by a lien on said Lot and the Residence located thereon in favor of the
Association. Such lien shall be
superior to all other liens and encumbrances on the Lot, except for (a) liens
of ad valorem taxes and (b) liens for all sums unpaid on a first mortgage or on
any mortgage to Declarant duly recorded in the office of the Registry of Deeds
of Moore County, North Carolina. All
other persons acquiring liens or encumbrances on any Lot after the recordation
of this Declaration shall be deemed to consent that such liens or encumbrances
shall be inferior to future liens for assessments as provided herein whether or
not such consent be specifically set forth in the instruments creating such
lien or encumbrance.
18.6.2 Notice of Lien. To evidence a lien for sums assessed pursuant to
this Article XVIII, the Association may, not fewer than thirty (30) Days after
the due date thereof, prepare a written notice of lien setting forth the amount
of the assessment, fee, charge or other amount secured thereby, the date or
dates due, the amount remaining unpaid, the name of the Owner of the Lot, and a
description of the Lot. Such a notice
shall be signed by any officer or manager of the Association and may be
recorded as provided by any applicable Federal, state, county or municipal
statute, regulation, law, code or ordinance or other governmental requirement
in the Registry of Deeds of Moore County, North Carolina. No notice of lien shall be recorded until
there is a delinquency in payment of such assessment, fee, charge or other
amount.
18.6.3 Foreclosure. Such
lien may be foreclosed by the Association in the same manner as a lien for the
improvement of real property may be foreclosed in the State of North Carolina
pursuant to a power of sale. In any
such foreclosure, the Owner shall be required to pay the costs and expenses of
filing the notice of lien and all costs and expenses including, but not limited
to, reasonable attorney’s fees, reasonable expenses, and court costs related to
said action of the Association incurred in filing such notice and prosecuting
such foreclosure. All such costs and
expenses shall be secured by the lien being foreclosed. In addition, as a condition of discharging
such lien, the Owner shall also be required to pay to the Association any
assessments, fees, charges or other amounts payable by such Owner that shall
become due prior to such discharge. The
Association shall have the right and power to bid at the foreclosure sale or
other legal sale and to acquire, hold, convey, lease, rent, encumber, use, and
otherwise deal with the Lot or Residence as the Owner thereof.
18.6.4 Release of Lien. A
release of notice of lien shall be executed by the Association and recorded in
the Registry of Deeds of Moore County, North Carolina upon payment of all sums
secured by a lien that has been made the subject of a recorded notice of
lien. Any encumbrancer holding a lien
or other encumbrance on a Lot may pay, but shall not be required to pay, any
amounts secured by the lien created pursuant to this Article XVIII, and, upon
such payment, such encumbrancer shall be subrogated to all rights of the
Association with respect to such lien or encumbrance including priority. The Association shall, upon written request,
report to any encumbrancer of a Lot any unpaid assessments remaining unpaid for
longer than sixty (60) Days after the same shall have become due; provided,
however, that such encumbrancer first shall have furnished to the Association
written notice of its encumbrance.
18.6.5 Relief.
No
sale, conveyance or transfer of any Lot pursuant to foreclosure or any sale
under power of sale—by a mortgagee or otherwise—shall relieve such Owner from
personal liability for any assessments, fees, charges or other amounts due
pursuant to the lien.
18.7 Subordination of the Lien
to Mortgages. The lien or liens provided
for herein shall be subordinate to the security title or lien of any first
mortgage. The sale, conveyance or
transfer of any Lot shall not affect any such lien. However, the sale, conveyance or transfer of any Lot pursuant to
foreclosure or any sale under power of sale by the holder of a first mortgage
shall extinguish such liens as to payments that become due prior to such sale
or transfer. However, any delinquent
uncollected assessments that were extinguished pursuant to foreclosure or any
sale under power of sale may be reallocated by the Board and assessed to all
Owners of Lots as a Common Expense. No
sale, conveyance or transfer shall relieve such Lot or subsequent Owner from
liability for any assessments, fees, charges or other amounts thereafter
becoming due.
18.8 Exempt Property. The property, individuals, and entities hereinafter
set forth and subject to this Declaration shall be exempted from the assessment
charge and lien created herein.
18.8.1 Utilities. The grantee of conveyances made to
utility companies for wells, tanks, pipelines, treatment plants and dispersion
fields, liens, pumping stations, and maintenance facilities or for the purpose
of creating utility easements therefor.
18.8.2 Common
Elements. All Common Elements as
herein defined.
18.8.3 Exempt
Property. All parts of the Property
exempted from taxation by any applicable Federal, state, county or municipal
statute, regulation, law, code or ordinance or other governmental requirement
upon the terms and to the extent of such exemptions.
18.8.4 Declarant. All vacant Lots owned by Declarant shall
be exempt so long as Declarant owns more than twenty-five percent (25%) of the
aggregate number of Lots in the Phase One Property, the Phase One-A Property,
the Phase Two Property, the Phase Three Property, and, if subsequently annexed
pursuant to the terms hereof, the Phase Four Property. After its Lot ownership drops below twenty-five
percent (25%) of the aggregate number of aforesaid Lots, the Lots owned by
Declarant will be subject to assessment on the same basis as Lots owned by
other Owners.
18.9 Failure to Assess. The failure of the Board to fix assessment amount or
rates or to deliver or mail to each Owner a notice of applicable assessments
(hereinafter the “Assessment Notice”) shall not be deemed to be a waiver,
modification or release of any Owner from the obligation to pay applicable
assessments. In such event, each Owner
shall continue to pay Annual 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, and, at such time, the Association may assess any shortfalls in
collections on a retroactive basis.
ARTICLE XIX
NOTICES
19.1 Notices. Any notice required pursuant to the Governing
Documents shall be, unless otherwise required, a written notice delivered to
the recipient or mailed to him by the United States Postal Service, postage
prepaid, at (a) his last known address if the recipient is an individual, (b)
addressed to the senior executive of the business entity if the recipient is a
business entity or (c) to the President of the Association if the recipient is
the Association or the Board. All
notices so delivered by mail shall be deemed to have been given as of the date
and hour of the postmark thereon or, in the absence of such postmark, as of the
date and time of mailing. The address
of an Owner shown on the records maintained by the Secretary of the Association
shall be the address of each Owner for making of all notices required from the
Board or the Association. It shall be
the responsibility and obligation of each Owner to furnish the Secretary with
written notice of any error in such records and of any change of address.
19.2 Agent to Receive Service
of Process. All notices, stipulations,
writings or processes to be served upon the Association or upon the Board shall
be delivered to the registered agent of the Association and to the incumbent
president of the Association.
ARTICLE XX
RENEWAL OF COVENANTS, CONDITIONS, AND RESTRICTIONS
20.1 Application. The provisions of this Declaration and related documents shall constitute covenants running with the land that are binding on Declarant, the Association, and all Owners of any part of the Property, their grantees, successors, assigns, heirs, personal representatives, administrators, and devisees as well as their immediate family, guests, invitees, visitors, lessees, tenants, servants, employees, and agents. By the acceptance of any deed or other document conveying or transferring any interest in a Lot or Residence, the recipient thereof accepts and ratifies all covenants, conditions, and restrictions set forth in the Governing Documents.
20.2 Acceptance. Each Owner of a Lot, by the acceptance of a deed therefor, covenants and agrees each with the other that (a) he will join in the execution of any and all documents that are deemed necessary by the Board to renew or extend this Declaration from time to time and (b) that any provision of any applicable Federal, state, county or municipal statute, regulation, law, code or ordinance or other governmental requirement removing any limitation of time that would apply to this Declaration if this Declaration were made after such provision of any applicable Federal, state, county or municipal statute, regulation, law, code or ordinance or other governmental requirement becomes of effect shall be deemed automatically to apply to this Declaration retroactively.
ARTICLE XXI
AMENDMENTS
21.1 Amendments by Declarant.
21.1.1
No Material Effect. Amendments that (a) do not
materially affect any rights of any then-Owners or their respective mortgagee
or (b) are reasonably necessary to effect compliance with any applicable
Federal, state, county or municipal statute, regulation, law, code or ordinance
or other governmental requirement may be made by Declarant by recording the
same in the foregoing manner at any time prior to the earlier of (c) the date
on which Declarant certifies to the Association that all of the Lots have been
conveyed to respective purchasers or (d) January 1, 2010.
21.1.2
Material Effect. In the event that any such
amendment does materially affect any rights of any then-Owners or their
respective mortgagees, such amendment shall be valid only upon the written
consent thereto of fifty percent (50%) of the Owners of Lots affected thereby
and theretofore conveyed by Declarant.
Any such amendment shall be certified by Declarant as having been duly
approved—copies of the records of such approval to be submitted to the
Association prior to the recordation of such amendment—and shall be effective
upon recordation in the Registry of Deeds of Moore County, North Carolina.
21.2
Amendments by Members.
21.2.1 Members. Any Member of the Association may propose an
amendment to this Declaration upon submission of the amendment, a supporting
statement as hereinafter set forth, and a petition for consideration of such
amendment pursuant hereto signed by the Owners of five percent (5%) of the Lots
and on which the names, signatures, and lot numbers of the Owners shall be set
forth. The proposed amendment must be
submitted in writing to the Secretary of the Association at least one hundred
and twenty (120) Days prior to the date of the special or regular meeting of
the Association at which the proposal is to be considered. The Member
submitting the proposed amendment shall include with the proposed amendment a
supporting statement for the adoption of the proposed amendment that shall not
exceed three hundred (300) words. The
Board may include a statement in support of or in opposition to the proposed
amendment. If the Board elects to
include a statement, however, the Board shall send a copy of its proposed
statement to the Member for review within thirty (30) Days of receipt of the
Member’s proposed statement. The
proposed amendment and supporting statement shall be included in the
Association’s notice of annual meeting or special meeting. The proxy that accompanies the notice shall
provide an appropriate means for the Members to approve, disapprove or abstain
from the vote upon such proposed amendment.
If a special meeting of the Association is called, the proposed
amendment shall be presented to that meeting if such proposed amendment was received
within a reasonable time prior to the mailing of the notice of the special
meeting to the Members.
21.2.2 Statement. A statement of the subject matter of any proposed
amendment or amendments shall be included in the notice of any Association
meeting at which the proposed amendments are to be considered.
21.2.3 Resolution. A resolution for the adoption of an amendment to
this Declaration may be proposed, upon compliance with and pursuant to the
terms of Section 21.2.1 and 21.2.2 hereof, by any Member of the
Association. The resolution for
adoption shall be approved only by the affirmative vote of at least sixty-seven
(67%) percent of the Aggregate Votes and the presence of Members or of proxies
entitled to cast ten percent (10%) of the Aggregate Votes shall constitute a
quorum for such a meeting for purposes of the adjournment thereof; provided,
however, that, if a specific provision of this Declaration sets forth a number
of Votes necessary for the action to be taken pursuant thereto, the number of
Votes necessary to amend said specific provision of this Declaration shall not
be less than the prescribed number of Votes required for action thereunder.
21.2.4 Requisite Vote. Except
as explicitly set forth in this Declaration, this Declaration shall be amended
only by the affirmative vote of at least sixty-seven (67%) percent of the
Aggregate Votes and the presence of Members or of proxies entitled to cast ten
percent (10%) of the Aggregate Votes shall constitute a quorum for such a
meeting for purposes of the adjournment thereof; provided, however, that, if a
specific provision of this Declaration sets forth a number of Votes necessary
for the action to be taken pursuant thereto, the number of Votes necessary to
amend said specific provision of this Declaration shall not be less than the
prescribed number of Votes required for action thereunder.
21.4 Validity and Effective Date. Any amendment to this Declaration shall become effective, unless a later effective date is therein specified, upon the recordation in the Registry of Deeds of Moore County, North Carolina of (a) said amendment and (b) an affidavit, executed by the president of the Association in recordable form, certifying that the amendment was duly adopted. Any procedural challenge to an amendment must be made within one (1) year of its recordation or such amendment shall be presumed to have been validly adopted. In no event shall a change of conditions or circumstances operate to amend any provisions of this Declaration. If an Owner consents to any amendment to this Declaration, it will be conclusively presumed that such Owner has the authority to consent, and no contrary provision in any mortgage or contract between the Owner and a third party will affect the validity of such consent.
21.5 Proviso. Notwithstanding any other prevision hereof, no amendment shall change the boundaries of a Lot nor the share in the Common Elements appurtenant to it unless the record Owners of all Lots shall approve the amendment in writing; provided, further, that no amendment to this effect may be made without the written approval of Declarant so long as Declarant owns three or more Lots.
ARTICLE XXII
REMEDIES FOR
VIOLATIONS
22.1 Breach. This Declaration shall be binding on all of the Lots
and the Owners thereof—regardless of the source of title of said Owners and
upon their immediate family, guests, invitees, visitors, lessees, tenants,
servants, employees, and agents. The
continuation of any breach hereof for a period of thirty (30) Days—five (5) Days
in the event of an emergency situation—from and the date on which the Board or
any Owner shall have notified the Owner (or resident in possession) of the Lot
upon which or as to which such breach has been committed to refrain from a
continuance of such action and to correct such breach shall warrant the Board
or any Owner to apply to any court of law or equity having jurisdiction thereof
for an injunction or other proper relief.
If such relief be granted, the court may, if its deems the aforesaid
violation to be willful or egregious, award to the party that sought to enforce
the provisions this Declaration in such action all costs and expenses
including, but not limited to, reasonable attorney’s fees, reasonable expenses,
and court costs related to said action.
22.2 Preservation of
Lien. Violations of any of the
provisions of this Declaration shall not defeat or render invalid the lien of
any mortgage or deed of trust made in good faith for value as to any Lot or
portion thereof; provided, however, that this Declaration shall remain and be
enforceable against any Lot or portion thereof acquired through foreclosure,
deed in lieu of foreclosure or any other form of transfer or conveyance of
title thereto.
ARTICLE XXIII
DECLARANT EXEMPTIONS
23.1 Exemption. Except as specifically set forth herein, Declarant shall be
exempt from the covenants, conditions, and restrictions set forth herein so
long as Declarant owns one (1) or more Lots.
This exemption is granted for the purpose of allowing Declarant to complete improvements and complete the sale (or lease
with option to purchase) of all Lots without restriction. Neither the Owners, the Association nor any
use of the Property shall interfere with completion of construction of the
buildings, the Residences or other improvements or with the sale of the Lots or
Residences by Declarant. Declarant may
make such reasonable use of the unsold Residences and Common Elements as may
facilitate such completion and sale including, but not limited to, maintenance
of a sales office, model units, signs, storage areas, construction facilities
and construction offices for the sale of Lots and the sale and construction of
the Residences subject to this Declaration.
ARTICLE XXIV
MISCELLANEOUS
24.1 Multiple Owners. If any Lot shall be owned as tenants in common by two or more
Persons, such Persons shall be jointly and severally liable for the assessments
levied against such Lot and for the prompt discharge of each and every
obligation or duty imposed on such Owners by the Governing Documents.
24.2 Conveyance. Each Owner of a Lot, by acceptance of a deed
therefor, agrees that he has had full opportunity to inspect and examine same
and waives any claim or demand that he might otherwise have had against
Declarant as a result of any warranty, express or implied, or of any
discrepancy between the Lot as it then exists and as it is described in this
Declaration, filed plats, supplemental plats, architectural plans and
specifications or any other instrument.
24.3 Perpetuities. If any of the covenants, conditions or restrictions
set forth herein shall be unlawful, void or voidable for violation of the rule
against perpetuities, then such provisions shall continue only until twenty-one
(21) years after the date of the death of the last survivor of the now-living
descendants of George W. Bush, William J. Clinton, George H. W. Bush, Ronald W.
Reagan, James E. Carter, and Gerald T. Ford, the incumbent President of the
United States of America and former Presidents of the United States of America.
24.4 Rights of
Mortgagees. Any mortgagee holding a
first mortgage on any Lot may require that the loan documents evidencing and
securing such loan contain provisions relating to reserve accounts for repairs
and replacements, additional insurance, voting rights, and such other matters
as may be acceptable to the mortgagee and the Owner. However, such provisions
shall be binding only as between such mortgagee and Owner, and no such
provision shall violate, restrict or modify the provisions of the Governing
Documents.
24.5 Declarant’s
Facilities. No Owner or any other person
shall have any rights of any nature, express or implied, in any adjacent
recreational or other facility owned by Declarant and not included as a part of
the Property including, but not limited to, the Golf Course Property. Declarant shall have the unrestricted right
at any time, and from time to time, to lease, mortgage or otherwise convey or
encumber, modify, close, terminate, limit operations and the membership, expand
and otherwise manage and control any such facilities and other property not
included as a part of the Property.
24.6 No Partition. Except for Declarant in the case of damage or
destruction, there shall be no judicial partition of the Property or any part
thereof, and, except for Declarant in the case of damage or destruction, the
Owners thus hereby waive any such right of judicial partition.
24.7 Construction. The section headings throughout this Declaration are
for convenience and reference only, and words contained therein shall in no way
be held to explain, modify, simplify or aid in the interpretation, construction
or meaning of the provisions of this Declaration. Whenever used herein, a pronoun in the neutral gender shall
include the masculine and feminine gender, and the singular shall include the
plural unless the context clearly indicates otherwise.
24.8 Indemnification. The Association shall, to the maximum extent
permitted by law, indemnify any director or officer or former director or officer
of the Association or any person who may have served at the request of the
Association as a director or officer of a committee thereof or another
corporation, whether for profit or not for profit, or a committee thereof
against expenses—all costs and expenses including, but not limited to,
reasonable attorney’s fees, reasonable expenses, and court costs related to
said action—or liabilities actually and reasonably incurred by him in
connection with the defense of or as a consequence of any threatened, pending
or completed action, suit or proceeding (whether civil or criminal) in which he
is made a party or was (or is threatened to be made) a party by reason of being
or having been such director or officer except in relation to matters as to
which he shall be adjudged in such action, suit or proceeding to be liable for
individual willful misfeasance, malfeasance, misconduct or bad faith in the
performance of duty. The
indemnification provided herein shall not be deemed exclusive of any other
rights to which those indemnified may be entitled under any statute, bylaw,
agreement, vote of Members or disinterested directors, or otherwise, both as to
action in his official capacity and as to action in another capacity while
holding such office, and shall continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person. The Association shall, as a Common Expense, maintain adequate
policies of insurance including coverages for general liability and directors
and officers liability to fund this obligation if such insurance is reasonably
available.
24.9 Security. The Association may, but shall not be obligated to,
maintain or support certain activities designed to promote general safety on
the Property; provided, however, that the Association shall not in any way be
considered an insurer or guarantor of security thereon nor shall the
Association be held liable for any loss or damage by reason of failure to provide
adequate security or ineffectiveness of security measures undertaken. No representation or warranty is made that
any security system or measure, including any mechanism or system for limiting
access to the Property, can not be compromised or circumvented nor that any
such systems or security measures undertaken will in all cases prevent loss or
provide the detection or protection for which the system is designed or
intended. Each Owner acknowledges,
understands, and covenants to inform his immediate family, guests, invitees,
visitors, lessees, tenants, servants, employees, and agents—that the
Association is not an insurer and that each Person using the Property assumes
all risks including, but not limited to, all risks of personal injury resulting
from acts of third parties and of loss or damage to property including
Residences and the contents thereof resulting from acts of third parties.
24.10 Golf Courses. By acceptance of a deed to any Lot, each Owner acknowledges and agrees that owning real property adjacent to a golf course has benefits as well as detriments, and that the detriments include, but are not limited to, (a) the risk of damage to property or injury to persons and animals from golf balls that are hit onto a Lot or other portion of the Property, (b) the right of entry by golfers onto a Lot to retrieve golf balls pursuant to Section 8.1.15 hereof, (c) overspray in connection with watering of the roughs, fairways, and greens on the Golf Course Property and Common Elements, (d) noise from maintenance and operation equipment (including, but not limited to, compressors, blowers, mulches, tractors, utility vehicles and pumps) on the Golf Course Property and Common Elements, (e) odors arising from irrigation and fertilization of the turf situated on the Golf Course Property, and (f) disturbance and loss of privacy resulting from golf cart traffic and golfers. Each Owner further acknowledges and agrees that pesticides and chemicals may be applied to the Golf Course Property and Common Elements throughout the year and that reclaimed water, treated wastewater or other sources of non-potable water may be used for irrigation of the Golf Course Property and Common Elements.
24.11 Presence and Management of Wildlife. Each Owner—and his immediate family, guests, invitees, visitors, lessees, tenants, servants, employees, and agents—acknowledges and agrees that the Property is located adjacent to and in the vicinity of wetland, bodies of water, and other natural areas. Such areas may contain wildlife including, without limitation, deer, foxes, and raccoons. The Association shall not be liable or responsible for any personal injury, illness or any other loss or damage caused by the presence of such wildlife on the Property. Each Owner—and his immediate family, guests, invitees, visitors, lessees, tenants, servants, employees, and agents—thus assumes all risk of personal injury, illness or other loss of damage arising from the presence of such wildlife and further acknowledges that the Association has made no representations or warranties nor has any Owner—or his immediate family, guests, invitees, visitors, lessees, tenants, servants, employees, and agents—relied upon any representations or warranties, expressed or implied, relative to the presence of such wildlife. The Association, in its sole and absolute discretion, retains the right, but not the obligation, to adopt and prosecute wildlife and fishery management plans and practices—including, but not limited to, organized hunting, shooting and trapping—on the Property to the extent that such practices are permitted by any applicable Federal, state, county or municipal statute, regulation, law, code or ordinance or other governmental requirement.
24.12 Headings. The headings included herein are for convenience of reference only and shall not constitute a part hereof or define, limit or otherwise affect the meaning of any of the terms or provisions herein.
24.13 Gender. This Declaration shall be construed such that the feminine, masculine or neuter gender shall be deemed to refer to and to include the neuter, feminine, and masculine gender.
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IN WITNESS WHEREOF, pursuant to the affirmative vote
of six hundred and sixty (660) Members of the Association in favor of the
adoption of this Third Amendment to Declaration of Covenants, Conditions and
Restrictions on February 28, 2002, Louis F. Weislogel, president of the
Association, executed this Third Amendment to Declaration of Covenants, Conditions
and Restrictions on behalf of the Association on March 2, 2002 to be effective
as of April 1, 2002.
PINEWILD MAINTENANCE
CORPORATION
D/B/A PINEWILD PROPERTY
OWNERS ASSOCIATION
_________________________________
Louis
F. Weislogel
President
STATE
OF NORTH CAROLINA
COUNTY
OF MOORE
I, a Notary Public of the County and State aforesaid, certify that Louis F. Weislogel personally came before me this day and acknowledged that he is the President of Pinewild Maintenance Corporation d/b/a the Pinewild Property Owners Association, a North Carolina corporation, and that by authority duly given and as the act of the corporation, the foregoing instrument was signed in its name by its President and sealed with its corporate seal. Witness my hand on this the 2nd day of March, 2002.
______________________________ My Commission Expires __________
Notary
Public
Schedule A
Phase Four Property
Schedule B
Phase Five Property