DECLARATION OF COVENANTS AND RESTRICTIONS
THIS DECLARATION, made this ____ day
of November, 2005 by
WHEREAS, the Company is the owner of the real property described in Article II of this Declaration and desires to create thereon a planned residential community with residential and recreational uses to be known as “Horse Mountain Properties”; and
WHEREAS, the Company desires to provide for the preservation of values and for the maintenance of common areas, facilities and services and for a vehicle for the administration and enforcement of covenants and restrictions; and
WHEREAS, the Company will cause to be
incorporated under the laws of the
NOW THEREFORE, the Company declares that the real property described in Article II is and shall be held, transferred, sold, conveyed, given, donated, leased, occupied and used subject to the covenants, restrictions, conditions, easements, charges, assessments (“Assessments”), affirmative obligations, and liens (all hereinafter sometimes referred to as “the Covenants”) hereinafter set forth.
The following words and terms when used in this Declaration or any supplemental declaration (unless the context shall clearly indicate otherwise) shall have the following meanings:
(a)
“Association”
shall mean and refer to Horse Mountain Properties Community Association, Inc.,
a
(b) “Common Areas” shall mean and refer to those tracts or parcels of land with any improvements thereon which are deeded to the Association and designated in said deed or lease as “Common Areas.” The term “Common Areas” shall also include any personal property acquired or leased by the Association if said property is designated “Common Area.” All Common Areas are to be devoted to and intended for the common use and enjoyment of the Members of the Association and their guests (to the extent permitted by the Board of Directors of the Association) subject to the operating rules and regulations (“Rules and Regulations”) adopted by the Association.
(c)
“Company” shall mean
(d)
“Conservation Easement” means that deed of gift of
easement between Company as Grantor and the Virginia Outdoors Foundation as
Grantee dated as of December 27, 2004 and recorded in the Clerk’s Office of the
Circuit Court of Alleghany County, Virginia, in Instrument 040004273, pages
044-058, as corrected by deed of correction dated as of and recorded in the aforesaid Clerk’s Office
in .
(e)
“Family Dwelling Unit” shall
mean and refer to any improved property or any property formerly classified a
(f)
“
(g)
“Member” shall mean and refer
to all those Owners and Tenants who are Members of the Association as defined
in Section 1 of Article III.
(h)
“Plat” shall mean and refer
to the plat entitled “Survey for Horse Mountain Properties, Jackson River
Magisterial District,
(i)
“Horse Mountain Properties”
shall mean and refer to the lands in Alleghany County or the City of Covington,
Virginia, which are shown as a part of Horse Mountain Properties on the Plat,
as the same may be revised from time to time, or other plats recorded in the
Clerk’s Office of the Circuit Court of Alleghany County, Virginia from time to
time.
(j)
“Owner” or “Property Owner”
shall mean and refer to the Owner as shown by the real estate records in the
Clerk’s Office of the Circuit Court of Alleghany County, Virginia, whether it
be one (1) or more persons, firms, associations, corporations, or other legal
entities, of fee simple title to any Lot or Family Dwelling Unit situated
within or upon the Properties but, notwithstanding any applicable theory of a
deed of trust, shall not mean or refer to the mortgagee or holder of a deed of
trust, its successors or assigns, unless and pursuant to foreclosure or a
proceeding or deed in lieu of foreclosure; nor shall the term “Owner” mean or
refer to any lessee or Tenant of an Owner.
In the event that there is recorded in the Office of the Clerk of the
Circuit Court of Alleghany County, Virginia, a long-term contract of sale
covering any land within the Properties, the Owner of such land shall be the
purchaser under said contract and not the fee simple title holder. A long-term contract of sale shall be one
where the purchaser is required to make payments for the land for a period
extending beyond nine (9) months from the date of the contract and where the
purchaser does not receive title to the land until all such payments are made,
although the purchaser is given the use of said land.
(k)
“Property” or “Properties” shall
mean and refer to the property described in Article II hereof as are subjected
to this Declaration or any Supplementary Declaration under the provisions of
Article II hereof.
(l)
“Road” or “Roads” shall mean and refer to
those areas designated on plats as roads or roadways, other than publicly
dedicated and accepted roads, and shall be deeded, at the discretion of the
Company, to the Association, subject to the rights of ingress, egress and
utilities.
(m)
“Tenant” shall mean and refer
to the lessee named under a written agreement for the rent and hire of a Family
Dwelling Unit and any immediate family of said lessee who actually reside in
the Family Dwelling Unit.
(n)
“Trails” shall mean any
bicycle, walking or jogging trail or bridle path located within the Common
Areas of the Property.
The real property which is subject to these Covenants is
described as follows:
All that tract
or parcel of land, situated, lying and being in Alleghany County or the City of
Covington, Virginia, which is more particularly described in Exhibit “A”
attached hereto and by specific reference made a part hereof.
The Company
plans to develop the Property in accordance with the Plat. The Plat may be revised from time to time and
additional plats may be recorded affecting the Property. The Company reserves the right to review and
modify the development plan shown on the Plat (the “Plan”) and this statement
shall not bind the Company, its successors and assigns, to adhere to the Plan
in the development of the Property.
Subject to its right to modify the Plan as stated herein, the Company
shall convey to the Association certain properties, as in the reasonable
exercise of its discretion it so chooses, without regard to the relative
location of such portions or sections within the overall plan. Once conveyed to the Association, these
properties shall either become Common Areas or Roads. The Company shall not be required to follow
any predetermined sequence or order of improvements.
ARTICLE III
MEMBERSHIP AND VOTING RIGHTS IN THE ASSOCIATION
Section 1.
Membership. The Company shall
be a Member of the Association, and a creditor who acquired title to the
Properties or any portion thereof pursuant to foreclosure or any other
proceeding or deed in lieu of foreclosure shall be a Member of the Association. Every Owner, unless otherwise specified,
shall be a Member of the Association.
Upon the execution of a lease, every Owner shall be required to submit
to the Secretary of the Association the names(s) of its Tenant(s), the term of
the lease and whether Owner is assigning its right to use the Common Areas to
its Tenant(s) during the term of such lease.
An Owner and its Tenant(s) may not share an Owner’s right to use the
Common Areas. The Association may issue
to each Member a membership card which shall expire upon the sale by an Owner
of its
Section 2.
Voting Rights. The Association
shall have two (2) types of regular voting membership.
TYPE “A”: Type “A” Members
shall be all Owners, except the Company, of Lots and Family Dwelling
Units. A Type “A” Member shall be
entitled to one (1) vote for each
TYPE “B”: The Type “B” Member
shall be the Company, its successors and assigns. The Type “B” Member shall be entitled to five
(5) votes for each
Payment of
Special Assessments shall not entitle Members to additional votes.
When any
property entitling the Owner to membership as a Type “A” Member of the
Association is owned of record in the name of two (2) or more persons or
entities, whether fiduciaries, joint tenants, tenants in common, tenants in
partnership or in any other manner of joint or common ownership, or if two (2)
or more persons or entities have the same fiduciary relationship respecting the
same property, then unless the instrument or order appointing them or creating
the tenancy otherwise directs and it or a copy thereof is filed with the
Secretary of the Association, their acts with respect to voting shall have the
following effect:
(1)
If only one (1) votes, in
person or by proxy, his act shall bind all;
(2)
If more than one (1) votes,
in person or by proxy, the act of the majority so voting shall bind all;
(3)
If more than one (1) votes,
in person or by proxy, but the vote is evenly split on any particular matter,
each fraction shall be entitled to its proportionate share of the vote or
votes;
(4)
If the instrument or order
filed with the Secretary of the Association shows that any such tenancy is held
in unequal interest, a majority or even split under subparagraphs (2) and (3)
immediately above shall be a majority or even split in interest in the property
to which the vote(s) is attributable;
(5)
The principles of this
paragraph shall apply, insofar as possible, to execution of proxies, waivers,
consents or objections, and for the purpose of ascertaining the presence of a
quorum.
Section 3.
Governance. The Association
shall be governed by a Board of Directors. The term and number of such
Directors shall be determined in accordance with the provisions of the Articles
of Incorporation of the Association.
Section 4.
Election of the
Board of Directors.
(a)
Each member of Type “A” and
“B” Membership classes shall be entitled to as many votes as equals the total
number of votes he is entitled to based on the number of Lots and Family
Dwelling Units owned.
Each voting
member may cast the total number of votes to which he is entitled for each
vacancy to be filled. Cumulative voting
shall not be allowed.
(b)
The number of Lots and Family
Dwelling Units owned by Type “A” and “B” Members shall be determined by the
Board of Directors as of the date on which notice of the meeting of the Members
at which the Board of Directors is to be elected is mailed.
Section 5.
Quorum Required for
Any Action Authorized at Regular or Special Meetings of the Association. The quorum required
for any action which is subject to a vote of the Members at meetings of the
Association shall be as follows:
(a)
The first time a meeting of
the Members of the Association is called to vote on (i) an increase in the
maximum regular annual assessment greater than that provided for by Section 6
of Article V hereof, (ii) a special assessment as provided for by Section 4 of
Article V hereof, (iii) an Amendment to this Declaration as provided for by
Section 2 of Article XI hereof, or (v) the termination of this Declaration as
provided in Section 1 of Article XI hereof, the presence at the meeting of
Members or proxies entitled to cast thirty percent (30%) of the total vote of
the Membership required for such action shall constitute a quorum.
(b)
The first time a meeting of
the Members of the Association is called to vote on any action proposed to be
taken by the Association, other than that described in subparagraph (a) above,
the presence at the meeting of Members or proxies entitled to cast fifteen
percent (15%) of the total vote of the Membership required for such action
shall constitute a quorum.
If the required
quorum is not present at any meeting described in subparagraphs (a) or (b)
above, with the exception of any meeting called to vote on the termination of this
Declaration described in subparagraph (a) above, another meeting or meetings
may be called subject to the giving of proper notice and the required quorum at
such subsequent meeting or meetings shall be one-half (1/2) of the required
quorum at the preceding meeting.
Unless otherwise
provided, any reference hereafter to “votes cast at a duly called meeting”
shall be construed to be subject to the quorum requirements established by this
Article III, Section 5, and any other requirements for such “duly called
meeting” which may be established by the Bylaws of the Association. For the purpose of this section, “proper
notice” shall be deemed to be given when given each Member not less than
fourteen (14) days prior to the date of the meeting at which any proposed
action is to be considered.
Section 6.
Proxies. All Members of
the Association may vote and transact business at any meeting of the
Association by proxy authorized in writing.
Section 7.
Ballots by Mail. When desired by
the Board of Directors, there shall be sent with notices of regular or special
meetings of the Association, a statement of certain motions to be introduced
for vote of the Members and a ballot on which each Member may vote for or
against each such motion. Each ballot
which is presented at such meeting shall be counted in calculating the quorum
requirements set out in Section 5 of this Article III; provided, however, such
ballots shall not be counted in determining whether a quorum is present to vote
upon motions not appearing on the ballot.
ARTICLE IV
PROPERTY RIGHTS IN THE COMMON AREAS
Section 1.
Members’ Easements
of Enjoyment in Common Areas. Subject to the provisions of this
Declaration, the rules and regulations of the Association, and any charges
established by the Association, every Member, and every guest of such Member,
shall have a right of easement of enjoyment in and to the Common Areas and such
easement shall be appurtenant to and shall pass with the title of every Lot and
Family Dwelling Unit. A Member’s spouse, parents, and children who reside with
such Member shall have the same easement of enjoyment hereunder as a Member
Section 2.
“B” Member
Employees’ Easement of Enjoyment in Common Areas. Employees of the
Type “B” Member shall have access to and enjoyment of the Common Areas subject
to rules and regulations and any user fees established by the Board of
Directors.
Section 3.
Title to Common
Areas.
(a)
The Company covenants for
itself, its successors and assigns, that it shall convey Common Areas by deed
to the Association, at no cost to the Association, and subject to (i) all restrictions
and limitations imposed by this Declaration, including, without limitation, all
rights of easement and rights of entry reserved unto the Company, its
successors and assigns, in said Declaration, (ii) all other restrictions and
limitations of record at the time of conveyance, including but not limited to,
the Conservation Easement, (iii) any
restrictions, limitations, conditions, or determinations as to the purposes and
uses of the conveyed properties as stipulated in said deed, (iv) deeds of trust
of record (but the Company shall covenant to hold the Association and the
Property harmless from the lien secured by the deed of trust), and (v) any
commitments by the Company to construct certain improvements thereon as
stipulated in said deed; and, upon such conveyance, such parcels of land and
any improvements thereon shall become Common Areas as designated in said deed.
(b)
The Association shall not
refuse the conveyance to it of any Common Area or Road at such time as the
Company, in its sole and uncontrolled discretion, deems it advisable to convey
such property to the Association.
(c)
At such time that the Company consummates the
first sale of a Lot, the Association shall immediately become responsible for
all maintenance and operation of all
Common Areas and Roads, and for such additional construction of improvements
thereon as may be authorized by the Association’s Board of Directors. It is the purpose of this provision to
provide that the Association shall be responsible for all maintenance and
operation of all Common Areas.
(d)
Notwithstanding anything in
the foregoing to the contrary, the Company reserves unto itself, its successors
and assigns, and its agents, the right to enter upon any Common Area, for the
purpose of constructing or maintaining indoor and outdoor recreational and
community facilities thereon. The
provisions of this paragraph shall in no way create any obligation on the part
of the Company to construct or maintain any such facilities on said properties. The Company further reserves for itself, its
assignees and successors the right to reserve and to grant to third parties
such easements as it may deem necessary over Common Areas
(e)
Notwithstanding anything in
the foregoing to the contrary, the Company shall not be required to convey the
above referred to parcels where such conveyance would be prohibited under
agreements existing on the date hereof, but, in such case, shall be allowed to
postpone such conveyance, without penalty, until such time as said prohibition
may be nullified.
Section 4.
Extent of Members’
Easements. The rights and easements of enjoyment
created hereby shall be subject to the following:
(a)
The right of the Association
in accordance with its By-laws, to borrow money from the Company or any lender
for the purpose of improving and/or maintaining the Common Areas and Roads and
providing services authorized herein and in aid thereof to mortgage said
properties provided, however, that any such mortgage is with the prior consent
of two-thirds (2/3) of the vote of Members of the Association, which consent
may be evidenced by petition or by an affirmative vote of two-thirds of the
vote of Members voting in person or by proxy at a duly called meeting of the
Association;
(b)
The right of the Association
to take such steps as are reasonably necessary to protect the above-described
properties against foreclosures;
(c)
The right of the Association
to suspend the rights and easements of enjoyment of any Member, Tenant or guest
of any Member for any period during which the payment of any Assessment against
property owned by such Member remains delinquent, and for the periods
designated for each infraction of its published rules and regulations as
delineated therein, it being understood that any suspension for either
nonpayment of any Assessment or a breach of the rules and regulations of the
Association shall not constitute a waiver or discharge of the Member’s
obligation to pay the Assessment, and, provided that the Association shall not
suspend the right to use any Roads belonging to the Association, subject to the
rules, regulations and fees, if any, established by the Association for such
use.
(d)
The right of the Association
to charge reasonable admission and other fees and dues for the use of
recreational facilities and services on the Common Areas.
(e)
The right of the Company or
the Association by its Board of Directors to dedicate or transfer to any public
or private utility, utility or drainage easements on any part of the Common
Areas.
(f)
The right of the Association
to give or sell all or any part of the Common Areas, including lease-hold
interests, subject to (i) the limitations and restrictions imposed by this
Declaration and (ii) all other restrictions and limitations of record at the
time of conveyance, to any public agency, authority, public service district,
utility, or private concern for such purposes and subject to such conditions as
may be agreed to by the Members; provided, however, that no such gift or sale
of any parcel of land and improvements thereon, or determination as to the
purposes or as to the conditions thereof, shall be effective unless such
dedication, transfers, and determinations as to purposes and conditions shall
be authorized by the affirmative vote of three-fourths (3/4) of the votes cast
at a duly called meeting of the Association.
A true copy of such resolution together with a certificate of the
results of the vote taken thereon shall be made and acknowledged by the
President or Vice President and Secretary or Assistant Secretary of the Association
and such certificate shall be annexed to any instrument of dedication or
transfer of any parcel of land and improvements thereon affecting the Common
Areas prior to the recording thereto.
Such certificates shall be conclusive evidence of authorization by the
membership. The gift or sale of any
personal property owned by the Association shall be determined by the Board of
Directors in its sole and uncontrolled discretion.
(g)
Notwithstanding anything
herein to the contrary, the Board of Directors of the Association shall have
the right, in its sole discretion, to cause the Association to grant minor
conveyances of Common Areas to resolve setback problems, or to grant easements
for the encroachment of initial improvements constructed on parcels adjoining
the Common Areas to the extent that such improvements actually encroach on such
properties, including but not limited to, overhanging eaves, gutters and
downspouts, and walls, such easements to continue only so long as such
improvements exist.
ARTICLE V
COVENANTS FOR ASSESSMENTS
Section 1.
Creation of the
Lien and Personal Obligation of Assessments. The Company covenants, and each Owner of any
Lot or Family Dwelling Unit located within the Properties, whether or not it
shall be so expressed in any such deed or other conveyance, shall be deemed to
covenant and agree to all the terms and provisions of this Declaration and to
pay to the Association: (a) annual
assessments or charges; and (b) special assessments or charges for the purposes
set forth in this Article, such assessments to be fixed, established and collected
from time to time as hereinafter provided.
The regular annual and special assessments (collectively called the
“Assessments”), together with such interest thereon and costs of collection
thereof including a reasonable attorney’s fee as hereinafter provided, shall be
a charge and continuing lien on the real property and improvements thereon
against which each such assessment is made.
Each such Assessment, together with such interest thereon and cost of
collection thereof including a reasonable attorney’s fee as hereinafter
provided, shall also be the personal obligation of the person who was the Owner
of such real property at the time when the assessment first became due and
payable. In the case of co-ownership of
a
Section 2.
Purpose of
Assessments. The Assessments levied by the Association
shall be used for promoting the recreation, health, safety and common benefit
of the Owners and for the improvement, maintenance, enhancement, enlargement,
and operation of the Common Areas and Roads, and to provide such other services
which the Association is authorized to provide.
Section 3.
Creation of
Assessments. . The Assessments, as may be from
time to time specifically authorized by the Board of Directors, shall be
allocated equally among all Lots and Family Dwelling Units within the
Association and shall be for expenses determined by the Board to be for the
benefit of the Association as a whole. The
assessment shall commence on the Lots and Family Dwelling Units owned by the
Company as of the day of closing of the initial sale from the Company. Assessments shall be pro-rated for any
partial year.
Section 4.
Special Assessments
for Improvements and Additions. In addition to the regular annual
assessments, the Association may levy special assessments for the following
purposes:
(a)
Construction, reconstruction,
repair, or replacement of capital improvements upon the Common Areas, including
the necessary fixtures and personal property related thereto, and for road
maintenance and repair.
(b)
For additions to the Common
Areas;
(c)
To provide for the necessary
facilities and equipment to offer the service authorized herein; and
(d)
To repay any loan made to the
Association to enable it to perform the duties and functions authorized herein.
Such special
assessment, before being charged, must have received the approval of the
Members of the Association by the favorable vote of three-quarters (3/4) of the
votes cast at a duly called meeting of the Association.
This provision
shall be interpreted to mean that the Association may make in any one (1) year
a regular annual assessment plus an additional special assessment. Such special assessment in any one (1) year
may not exceed a sum equal to the amount of the regular annual assessment for
such year except for emergency or repairs required as a result of storm, fire,
natural disaster, or other casualty loss.
Section 5.
Reserve Funds. The Association
shall establish reserve funds from its regular annual assessments to be held in
reserve in an interest drawing account or investments as a reserve for:
(b)
Emergency and other repairs
required as a result of storm, fire, natural disaster, or other casualty loss;
and
(c)
Initial costs of any new
service to be performed by the Association.
Section 6.
Duties of the Board
of Directors. It shall be the duty of the Board, at least
sixty (60) days before the beginning of the fiscal year to prepare a budget
covering the estimated costs of operating the Association during the next
year. The budget shall include a capital
contribution establishing a reserve fund in accordance with a capital budget
separately prepared including a reserve fund for maintenance of Roads as required
by Article VI. The Board shall determine
an annual road assessment per
The Association
shall upon demand at any time furnish to any Owner liable for said assessments
a certificate in writing signed by an officer of the Association, setting forth
whether said assessments have been paid.
Such certificate shall be conclusive evidence against all but the Owner
of payment of any assessment therein stated to have been paid. If the Board of Directors authorizes a
Billing Agent to collect assessments, the certificate of the said billing agent
shall be conclusive evidence against all but the Owner of payment of any
Assessment therein stated to have been paid.
Assessments
shall be billed annually, quarterly, monthly, or on such other basis as may be
determined by the Board of Directors.
All Assessment bills shall be due and payable within thirty (30) days
from the date of mailing.
Section 7.
Effect of Non-Payment
of Assessment: The Personal Obligation
of the Owner; the Lien; Remedies of Association. If the regular
annual assessment or any special assessment is not paid on or before the
past-due date specified in Section 6 Article V, then such assessment shall
become delinquent and shall (together with interest thereon at the maximum
annual rate permitted by law accrued from the due date and cost of collection
thereof including a reasonable attorney’s fee as hereinafter provided) become a
charge and continuing lien on the land and all improvements thereof, against
which each such Assessment is made, in the hands of the then Owner, his heirs,
devises, personal representatives, and assigns.
If the
Assessment is not paid within thirty (30) days after the past due date, the
Association may bring an action at law against the Owner personally and there
shall be added to the amount of such assessment the costs of preparing the
filing of the complaint in such action and a reasonable attorney’s fee, and in
the event a judgment is obtained, such judgment shall include interest on the
assessment as above provided and a reasonable attorney’s fee together with the
costs of the action.
Section 8.
Subordination of
the Lien.
The continuing lien of the assessments provided for herein shall be
subordinate to the lien of any first or second deed of trust now or hereafter
placed upon any properties subject to assessment, and, in addition, shall be
subordinate to the lien of the cost of corrective action provided for now or
hereafter placed upon any properties subject to assessment. In the event a creditor acquires title to any
property subject to assessment pursuant to foreclosure or any other proceeding
or deed in lieu of foreclosure, said creditor shall be subject to assessments
accruing after such acquisition.
Section 9.
Annual Statements. The President,
Treasurer, or such other officer as may have custody of the funds of the
Association shall annually, within ninety (90) days after the close of the
fiscal year of the Association, prepare and execute under oath a general
itemized statement showing the actual assets and liabilities of the Association
at the close of such fiscal year, and a statement of revenues, costs and
expenses. It shall be necessary to set
out in the statement the name of any creditor of the Association; provided
however, that this requirement shall be construed to apply only to creditors of
more than One Thousand and no/100 ($1,000.00) Dollars. Such officer shall furnish to each Member of
the Association who may make a request therefore in writing, a copy of such
statement, within thirty (30) days after receipt of such request. Such copy may be furnished to the Member
either in person or by mail. Any holder
of a first or second mortgage on a
Section 10.
Annual Budget. The Board of
Directors shall make available to all Members, prior to the first day of the
next fiscal year, a budget outlining anticipated receipts and expenses for the
following fiscal year. The financial
books of the Association shall be available for inspection by all Members at
all reasonable times.
Section 1.
Access. As an appurtenance
to each of the Lots, Family Dwelling Units and Common Areas and other parcels
of land located in Horse Mountain Properties, and for future areas developed as
a part of Horse Mountain Properties, there is hereby created a perpetual, but
nonexclusive, easement for purposes of ingress and egress over all Roads, shown
or hereinafter designated, constructed or set apart by plats or other
instruments of record. Guests,
employees, customers, agents and contractors of any Owner or Tenant shall at
all times have a right and non-exclusive easement of access and use over all
such Roads as reasonably necessary to travel from the entrance of Horse
Mountain Properties to each respective Lot, Family Dwelling Unit and/or the
Common Areas.
Section 2.
Maintenance of
Roads.
The Association shall maintain all Roads, including all repair,
improvements, and other work as necessary to properly maintain the Roads in
good condition. The maintenance fees for
the Roads shall be included in the regular annual assessment as set forth in
Article V. Notwithstanding the
foregoing, nothing herein shall be construed to impose an obligation upon the
Association to remove snow from the Roads.
Cost of
construction, maintenance, or upkeep or replacement of the private roads will
not be borne by the
Section 3.
Rules and
Regulations. The appurtenant easements created in Section
1 of this Article shall be subject to such rules and regulations as may exist
from time to time as imposed by the Company and/or the Association.
Section 4.
Conveyance of Roads. Subject to the use
of others, as set forth herein, the fee simple ownership of the Roads will be
conveyed to the Association from time to time, the same as Common Areas
pursuant to Article IV of this Declaration.
Section 5.
Amendments. Not withstanding
the language of other Articles of this document, Section 1 of this Article VI
may not be amended to terminate or change the access to any property or persons
entitled to said access pursuant to Section 1 of this Article VI without the
written consent of the Owner or individual whose access is being changed or
terminated.
ARTICLE VII
FUNCTIONS OF ASSOCIATION
Section 1.
Ownership and
Maintenance of Properties. The Association shall be authorized to own
and/or maintain Common Areas and Roads, furnishings, and improvements devoted
to, but not limited to, the following uses:
(a)
For Roads, roadways, and any
entrance areas throughout the Properties;
(b)
For Trails throughout the
Properties;
(c)
For buildings used in
maintenance functions;
(d)
For providing any of the
services which the Association is authorized to offer;
(e)
For purposes set out in deeds
by which Common Areas are conveyed to the Association, provided that such
purposes shall be approved by the Board of the Association;
(f)
For indoor and outdoor
recreational and community facilities; and
Section 2.
Services. The Association
shall be authorized but not required, except as specified in Section 3 of this
Article, to provide the following services:
(a)
Cleaning and maintenance of
all Roads, roadways, entrances, parks, Trails, and Common Areas within the
Properties, and also all public properties which are located within or in a
reasonable proximity to the Properties such that their deterioration would
affect the appearance of the Properties as a whole;
(b)
Landscaping and
beautification of Roads, roadways, entrances, parks, Trails and Common Areas;
(c)
The services necessary or
desirable in the judgment of the Board of Directors of the Association to carry
out the Association’s obligations and business under the terms of this
Declaration;
(d)
To take any and all actions
necessary to enforce this Declaration and to perform any of the functions or
services delegated to the Association in this Declaration;
(e)
To set up and operate an
Architectural Review Board for all Common Areas;
(f)
To construct improvements on
Common Areas, for use for any of the purposes authorized in this Article;
(g)
To provide administrative
services for the Association, including, but not limited to, legal, accounting,
and financial; and communication services, including, but not limited to,
notices of meetings, referendums, and other issues and events of community
interest; and
(h)
To provide liability and
hazard insurance covering improvements and activities on and within the Common
Areas and Roads.
(i)
To construct signs and other
standard features for use throughout the Properties.
Section 3.
Minimum List of
Functions and Services. The “Minimum List of Functions and Services”
shall establish and define the minimum level of functions and services which
the Association must furnish to its Members.
So long as the Company is engaged in the development of Properties which
are subject to the terms of this Declaration, the Association shall not reduce
the level of functions and services it furnishes to its Members below such
minimum level without the prior written consent of the Company. The “Minimum List of Functions and Services”
is as follows:
(a)
The Association shall provide
or procure the administrative services necessary to carry out the Association’s
obligations and business under the terms of this Declaration, the Articles of
Incorporation of the Association, and the By-Laws of the Association,
including, but not limited to, legal, accounting, financial, and communications
services.
(b)
The Association shall
administer and enforce the Covenants established in this Declaration, and
subsequent declarations including, but not limited to, the following:
(1)
The Association shall set
assessments, levy cash Assessments, notify the Members of such Assessments, and
collect such assessments;
(2)
The Association shall
maintain in good condition and operate all Common Areas and Roads once
obligated to do so under this Declaration;
(3)
The Association shall hold
annual meetings, and special meetings, as required, hold elections for the
Board of Directors as required, and give Members “proper notice” as required;
and
(4)
The Association shall prepare
annual statements and annual budgets, and shall make the financial books of the
Association available for inspection by Members at all reasonable times.
(c)
Should the Company appoint
the Association its agent for the administration and enforcement of any
Covenants of this Declaration and any subsequent Declarations, the Association
shall assume such responsibility and any obligations which are incident
thereto.
(d)
Should the Company assign to
the Association any of the rights reserved unto it in any Covenants of this
Declaration and any subsequent Declarations, the Association shall assume the
responsibility of administering and shall assume any obligations which are
incident thereto.
(e)
The Association shall provide
appropriate liability and hazard insurance coverage for improvements and
activities on all Common Areas and for Roads.
(f)
The Association shall provide
appropriate Directors’ and Officers’ Legal Liability Insurance. The Association shall indemnify every
officer, director, and committee member against any and all expenses, including
counsel fees, reasonably incurred by or imposed upon such officer, director, or
committee member in connection with any action, suit, or other proceeding
(including settlement of any suit or proceeding, if approved by the then Board
of Directors) to which he or she may be a party by reason of being or having
been an officer, director, or committee member.
The officers,
directors, and committee members shall not be liable for any mistake of
judgment, negligent or otherwise, except for their own individual willful
misfeasance, malfeasance, misconduct, or bad faith. The officers and directors shall have no
personal liability with respect to any contract or other commitment made by
them in good faith on behalf of the Association (except to the extent that such
officers or directors may also be Members of the Association). The Association shall indemnify and forever
hold each such officer and director free and harmless against any and all
liability to others on account of any such contract or commitment. Any right to indemnification provided for
herein shall not be exclusive of any other rights to which any present or
former officer, director, or committee member may be entitled.
(g)
The Association shall keep a
complete record of all its acts and corporate affairs.
(h)
The Association shall provide
regular and thorough cleanup and maintenance of all Roads, roadways, berms,
entrances, and Trails throughout the Properties, including, but not limited to
regrading of Roads, mowing grass on all roadsides and around the entrances and
Trails; landscape maintenance on all roadsides, entrances and Trails; pickup
and disposal of trash on all Roads, roadsides, entrances and Trails.
(i)
The Association shall provide
general maintenance of any entrance sign or other area signs, including, but
not limited to, maintaining, repair work, replacement as needed, and landscaping
within Common Areas and within any sign easement on any
(j)
The Association shall repair
all Trails as needed.
(k)
The Association shall provide
regular and thorough maintenance and cleanup of all Common Areas, including,
but not limited to, mowing of grass, fertilization as needed, landscape
maintenance as needed, pickup and disposal of trash, washing down of picnic
tables and benches as needed, and painting, repairs to and replacement of all
improvements as needed.
(l)
Insurance coverage on the
Property shall be governed by the following provisions:
(1)
Ownership of Policies. All insurance
policies upon the Roads and Common Areas shall be
purchased by the Association for the benefit of the Association and the Owners
and their mortgagees as their security interest may appear.
(2)
Coverage. All buildings and
improvements upon the land and all personal property included in the Common
Areas and facilities shall be insured in an amount equal to one hundred percent
(100%) insurable replacement value as determined annually by the Board of
Directors of the Association. Such
coverage shall provide protection against:
(i)
Loss or damage by fire and
other hazard covered by standard extended coverage endorsement;
(ii)
Such other risks as from time
to time shall be customarily covered with respect to buildings on the land; and
(iii)
Such policies shall contain
clauses provided for waiver of subordination.
(3)
Liability. Public liability
insurance shall be secured by the Association with limits of liability of no
less than One Million Dollars ($1,000,000.00) per occurrence. There shall also
be obtained such other insurance coverage as the Association shall determine
from time to time to be desirable and necessary.
(4)
Premiums. Premiums for
insurance policies purchased by the Association shall be paid by Association
and charged to the Owners as part of the regular annual assessment.
(5)
Proceeds. All insurance
policies purchased by the Association shall be for the benefit of the
Association and the Owners and their mortgagees as their security interest may
appear, and shall provide that all proceeds thereof shall be payable to the
Association as insurance trustee under this Declaration. The sole duty of the Association as insurance
trustee shall be to receive such proceeds as are paid and to hold the same in
trust for the purposes stated herein or stated in the By-Laws and for the
benefit of the Owners and their mortgagees.
(6)
Proceeds of insurance
policies received by the Association as insurance trustee shall be placed in
the Association’s treasury for the following:
(i)
Expense of the Trust. All expenses of
the insurance trustee shall first be paid or provisions made therefore.
(ii)
Reconstruction or Repair. The remaining
proceeds shall be paid to defray the cost of repairs. Any proceeds remaining after defraying such
cost shall be retained by the Association.
(7)
All persons responsible for
or authorized to expend funds or otherwise deal in the assets of the
Association or those held in trust, shall first be bonded by a quality insurer
to indemnify the Association for any loss or default in the performance of their
duties in an amount equal to six (6) months’ assessments plus reserves
accumulated.
Section 4.
Obligation of the
Association. The Association shall not be obligated to
carry out or offer any of the functions and services specified by the
provisions of this Article except as specified in Section 3 of this
Article. The functions and services,
other than those set in Section 3 of this Article, to be carried out or offered
by the Association at any particular time shall be determined by the Board of
Directors of the Association taking into consideration the funds available to
the Association and the needs of the Members of the Association. The functions and services, other than those
set in Section 3 of this Article, which the Association is authorized to carry
out or to provide, may be added or reduced at any time upon the affirmative
vote of three quarters (3/4) of the votes cast at a duly called meeting of the
Association at which a quorum is present; provided, however, that so long as
the Company is a member of the Association no change may occur without its
consent.
Section 5.
Mortgage and Pledge. The Board of
Directors of the Association shall have the power and authority to mortgage the
property of the Association and to pledge the revenues of the Association as
security for loans made to the Association which loans shall be used by the
Association in performing its authorized functions and services; provided that
any such mortgage is with the prior consent of three-quarters (3/4) of the vote
of the Members of the Association, which consent may be evidenced by petition
or by an affirmative vote of three-quarters (3/4) of the Association. The Company may, but shall not be required,
to make loans to the Association, subject to approval by the Company of the use
to which such loan proceeds will be put and the terms pursuant to which such
loan will be repaid. Notwithstanding
anything in this Declaration to the contrary, the Association shall not be
allowed to reduce the level of the Regular Annual Assessment at any time
without the express written consent of the Company as long as there are
outstanding amounts due the Company from the Association.
ARTICLE VIII
ARCHITECTURAL CONTROL AND GENERAL PROPERTY COVENANTS
Section 1.
Architectural
Approval for Lots and Family Dwelling Units. No building, fence, or other structure shall be erected, placed, or altered, nor shall a building
permit for such improvement be applied for on any
Section 2.
Site and Location
Approval for Lots and Family Dwelling Units. In order to assure that buildings and other
structures will be located with regard to the topography of each Lot, taking
into consideration the location of large trees and other aesthetic and
environmental considerations, the Company reserves the right to control
absolutely and to decide solely (subject to the provisions of the Zoning
Ordinance of the County of Alleghany or City of Covington, whichever is
applicable)) the precise site and location of any building or structure on a
Lot or Family Dwelling Unit for reasons which may in the sole and uncontrolled
discretion and judgment of the Company seem sufficient; provided, however, that
no such approval is required if all portions of the main dwelling and/or
accessory building is located more than one hundred
fifty feet (150’) from each boundary line of the Lot. Notwithstanding the foregoing, the Company
reserves the right to transfer its duties and obligations under this provision
to the Architectural Review Board as defined in Section 10 of Article VIII
hereof.
Section 3.
Landscape
Guidelines. No trees measuring six (6) inches or more in
diameter at a point two (2) feet above ground level may be removed from Common
Areas or Lots without the prior written approval of the Company; provided,
however, that approval for the removal of trees located within ten (10) feet of
the site of main dwelling and/or accessory building and driveway is not
required. Notwithstanding the foregoing, the Company reserves the right to
transfer its duties and obligations under this provision to the Architectural
Review Board as defined in Section 10 of Article VIII hereof.
Section 4.
Off Street Parking. Each Owner of a
Section 5.
Maintenance of
Property.
It shall be the responsibility of each Owner, Tenant, contractor, or
subcontractor to prevent the development of any unclean, unsightly, unkempt,
unhealthy or unsafe conditions of buildings or grounds on any Property which
shall tend to substantially decrease the beauty or safety of the Property. The Company and its agents shall have the
right to enter upon any Property for the purpose of correcting such conditions,
including, but not limited to, the removal of trash which has collected on the
Property, and the cost of such corrective action shall be paid by the Property
Owner. Such entry shall not be made
until thirty (30) days after the Owner of the Property has been notified in
writing of the need to take corrective action and unless such Owner fails to
perform the corrective action within said thirty (30) day period; provided,
however, that should such condition pose a health or safety hazard, such entry
shall not be made until the Owner has been notified in writing of the need to
take immediate corrective action and unless such Owner fails to perform the
corrective action immediately. The
provisions of this paragraph shall not create any obligation on the part of the
Company to take any such corrective action.
Section 6.
Septic. Prior to the occupancy of a building or
structure on any Property, proper and suitable provisions shall be made by
Owner for the disposal of sewage.
Section 7.
Well. Prior to the
occupancy of a building or structure on any Property, proper and suitable
provisions shall be made by Owner for supplying running water.
Section 8.
Easement
Reservation. The Company reserves unto itself, its
successors and assigns, and its agent, a perpetual, alienable, and releasable
easement and right, on, over and under the Properties to erect, install,
maintain, and use electric, community antenna television, cable television and
telephone poles, wires, cables, conduits, drainage ways, sewers, water mains,
and other suitable equipment for the conveyance and use of electricity,
telephone equipment, gas, sewer, water, drainage, or other public conveniences
or utilities on, in, or over those portions of such Property as may be
reasonably required for utility line purposes; provided, however, that no such
utility easement shall be applicable to any portion of such Property as may
have been used prior to the installation of such utilities for construction of
a building whose plans were approved pursuant to these covenants by the Company. These easements and rights expressly include
the right to cut any trees, bushes, or shrubbery, make any gradings of the
soil, or to take any other similar action reasonably necessary to provide
economical and safe utility installation and to maintain reasonable standards
of health, safety, and appearance. The
Company further reserves the right to locate wells, pumping stations, siltation
basins, and tanks within any Common Areas or on any Property designated for such
use on the applicable plat of said Property, or to locate same upon any
Property with the permission of the Owner of such Property. Such rights may be exercised by any licensee
of the Company, but this reservation shall not create any obligation on the
part of the Company to provide or maintain any such utility or service.
Section 9.
Architectural
Review of Common Areas. No building, wall, fence, or other structure
shall be commenced, erected, or maintained upon the Common Areas, nor shall any
landscaping be done in these Areas, nor shall any exterior addition to any
existing structure located on these Areas or change or alteration therein be
made until the plans and specifications therefore showing the nature, kind,
shape, height, materials, colors and location of the same shall have been
submitted to and approved in writing as to the harmony and compatibility of its
external design and location with the surrounding structures and topography by
the Architectural Review Board of the Association and/or by the Company
pursuant to the provisions of this Declaration.
Section 10.
Architectural
Review Board. The Architectural Review
Board shall be composed of at least one (1) but not more than five (5) Members,
all of whom shall be appointed by the Board of Directors of the Association.
ARTICLE IX
ADDITIONAL RESTRICTIONS AFFECTING
THE PROPERTIES
(a)
All Lots shall be used for
residential purposes, recreational purposes incidental thereto, and for
customary accessory uses. The use of a
portion of a dwelling unit on a Lot as an office by the Owner or Tenant thereof
shall be considered a residential use if such use does not create undue
customer or client traffic, as determined by the Company in its sole and
uncontrolled discretion, to and from the Lot.
Such use must be in compliance with the zoning ordinances and other applicable
regulations of the governing municipality and, if applicable, the terms and
conditions of the Conservation Easement.
(b)
No structure, except as
hereinafter provided, shall be erected, altered, placed or permitted to remain
on a Lot other than one (1) detached single family dwelling and, if permitted
by the deed to such Lot, one (1) accessory building.
(c)
A guest suite or like
facility without a kitchen may be included as part of the main dwelling or an
accessory building on any Lot, but such suite may not be rented or leased
except as part of the entire premises including the main dwelling, and
provided, however, that such suite would not result in overcrowding the
Property, as determined by the Company in its sole and uncontrolled discretion.
Section 2.
Completion of
Improvements.
(a)
The exterior of each house,
and all other structures must be completed within one (1) year after the
construction of same shall have commenced on all Lots except where such
completion is impossible or would result in great hardship to the Owner or
builder due to strikes, fires, national emergency or natural calamities. Houses may not be temporarily or permanently
occupied until the exteriors thereof have been completed. During the continuance of construction, the
Owner of the
(b)
The failure to complete the
exterior of any house, or any other structure within the time limit set forth
in paragraph 2(a) above shall constitute a violation and breach of these
Covenants. The Company hereby reserves
unto itself, its successors and assigns, a right on, over, and under all Lots
for the purpose of taking any action necessary to effect compliance with paragraph
2(a) above, including, but not limited to the right to enter upon any property
for the purpose of completing the exterior of such house, dwelling unit, or any
other structure which is in violation of paragraph 2 (a). Such entry shall not be made until thirty
(30) days after the Owner of the property has been notified in writing of the
violation of these Covenants and unless such Owner has failed to complete said
exterior within said thirty (30) day period.
The cost of such corrective action, when performed by the Company or its
agents, shall be paid by the Owner of the
Section 3.
Screened Area and
Other Matters.
(a)
Each Owner of a
(b)
If garbage pickup occurs, no
Owner shall place the receptacles at the Road earlier than six (6) hours before
pickup and shall remove within six (6) hours after pickup. Garbage and trash pickup shall be only by
such company, companies or individuals as are designated as an approved
operator in advance by the Association in its sole discretion. No burning of trash, other than leaves or
wood debris, shall be permitted on any
(c)
No school buses, campers,
trailers, recreational vehicles, dune buggies, or boats shall be parked on any
Road or Common Area. No school buses,
campers, trailers, recreational vehicles, dune buggies, or boats shall be
parked on any
(d)
No clothing, laundry or wash
shall be aired or dried on any
(e)
No animals, livestock or
poultry of any kind shall be raised, bred or kept on any Lot or in any Family
Dwelling Unit, except that horses, dogs, cats or other household pets may be
kept on the Lot or in the Family Dwelling Unit subject to rules and regulations
adopted by the Company, its successors or assigns.
Section 4.
Prohibited
Structures.
(a)
No mobile home or residential
trailer shall be placed on any
(b)
No television antenna,
satellite dish, radio receiver, radio sender, or other similar device shall be
attached to or installed on any Lot or on the exterior portion of any building
or structure on any Lot so as to be visible from any Road or adjacent
properties except as follows: should
C.A.T.V. services or cable service be unavailable and good television reception
not be otherwise available, the Owner or Tenant of a Family Dwelling Unit may
make written application to the Company for permission to install a television
antenna or a stationary satellite dish, which may be approved or denied in the
sole and uncontrolled discretion of the Company.
Section 5.
Utility and
Drainage Easements. The utility and drainage easements reserved
by the Company in these Covenants shall be located within twenty five feet
(25’) of the boundary lines of each
(a)
Easement. There is hereby
created for the benefit of the Owners, an easement across the Roads and Common
Areas for biking, walking, and jogging trails and bridle paths (“Trails”) as
they may be built from time to time.
There is further reserved the right of access to repair and replace the
Trails which shall be maintained in good repair by the Association. The provisions of this paragraph shall in no
way create any obligation on the part of the Company to construct or maintain
any Trails on the Properties.
(b)
Liability. Any party using
the Trails shall hold the Company and the Association harmless from any
liability arising out of the use of and/or maintenance of the Trails except for
liability caused by the negligent or willful act of the Company or the
Association.
Section 1.
Duration. The Covenants of
this Declaration and any Amendments thereto shall run with and bind the land,
and shall inure to the benefit of and be enforceable by the Association, the
Company, or the Owner of any land subject to this Declaration, their respective
legal representatives, heirs, successors, and assigns, for a period of thirty
(30) years from the date this Declaration is recorded. Upon the expiration of said thirty (30) year
period, this Declaration shall be automatically extended for successive periods
of ten (10) years. The number of ten
(10) years extension periods hereunder shall be unlimited, and this Declaration
shall be automatically extended upon the expiration of the initial thirty (30)
year period, or during the last year of any subsequent ten (10) year extension
period, unless at a duly called meeting of the Association fifty-one percent
(51%) or more of the total vote entitled to be cast by all the Members of the
Association shall vote in favor of terminating this Declaration at the end of
its then current term. The presence at
the meeting of the Members or proxies entitled to cast thirty percent (30%) of
the total vote of the Membership shall constitute a quorum. It shall be required that written notice of
any meeting at which such a proposal to terminate this Declaration is to be
considered, setting forth the fact that such a proposal will be considered,
shall be given each Member at least thirty (30) days in advance of said
meeting. In the event that the Members
of the Association vote to terminate this Declaration, the President and
Secretary of the Association shall execute a certificate which shall set forth
the Resolution of Termination adopted by the Association, the date of the
meeting of the Association at which such Resolution was adopted, the date the notice
of such Meeting was given, the total number of votes of Members of the
Association, the total number of votes required to constitute a quorum at a
meeting of the Association, the total number of votes present at said meeting,
the total number of votes necessary to adopt a Resolution terminating this
Declaration, the total number of votes cast in favor of such Resolution, and
the total number of votes cast against such Resolution. Said certificate shall be recorded in the
Clerk’s Office of the Circuit Court of Alleghany, Virginia, and may be relied
upon for the correctness of the facts contained therein as they relate to the
termination of this Declaration.
Section 2.
Amendments. All proposed
Amendments to this Declaration shall be submitted to a vote of the Members at a
duly called meeting of the Association and any such proposed amendment shall be
deemed approved if two-thirds (2/3) of the votes cast at such meeting vote in
favor of such proposed amendment. Notice
shall be given each Member at least fourteen (14) days prior to the date of the
meeting at which such proposed amendment is to be considered. If any proposed amendment to this Declaration
is approved by the Members as set forth above, the President and Secretary of
the Association shall execute an Addendum to this Declaration which shall set
forth the Amendment, the effective date of the Amendment (which in no event
shall be less than fifteen (15) days after the date of the meeting of the
Association at which such Amendment was adopted), the date the notice of such
meeting was given, the total number of votes of Members of the Association, the
total number of votes required to constitute a quorum at a meeting of the
Association, the total number of votes present at said meeting, the number of
votes necessary to adopt the Amendment, the total number of votes cast for and
against the Amendment, and such Addendum shall be recorded in the Clerk’s
Office of the Circuit Court of Alleghany County, Virginia.
So long as the
Company is a Type “B” Member, no Amendment of this Declaration shall be made
without the written consent of the Company.
The Company
reserves unto itself, its successors and assigns, the right to add additional
restrictive covenants in respect to lands within the Properties to be conveyed
in the future by the Company to the Association or to any other third party, or
to limit therein the application of these covenants. The right to add additional restrictions or
to limit the application of these covenants shall be reasonably exercised.
Section 3.
Notices. Any notice
required to be sent to any Member under the provisions of this Declaration
shall be deemed to have been properly sent, and notice thereby given, when
delivered personally or sent by mail, with the proper postage affixed, to the
address appearing on the Association’s Membership list. Notice to one (1) of two (2) or more
co-owners or co-tenants shall constitute notice to all co-owners. It shall be the obligation of every Member to
immediately notify the Secretary of the Association in writing of any change of
address. Any person who becomes a Member
following the first day in the calendar month in which said notice is delivered
or mailed shall be deemed to have been given notice if notice was given to his predecessor
in title.
Section 4.
Enforcement. Enforcement of
these Covenants shall be by any proceeding at law or in equity against any
person or persons violating or attempting to violate or circumvent any
Covenant, either to restrain a violation or to recover damages, may be against
the land or to enforce any lien created by these Covenants. Failure by the Association or the Company to
enforce any Covenant herein contained for any period of time shall not be
deemed a waiver or estoppel of the right to enforce same thereafter.
In addition in
the event of a violation or breach of any of the Covenants contained herein by
any Property Owner, Tenant, or agent of such Owner, the Owners of the
Properties, or any of them, jointly or severally, shall have the right to
proceed at law or in equity to compel compliance to the terms hereof.
In addition to
the foregoing, the Company or its agent shall have the right, whenever there
shall have been placed or constructed on any of the Properties any building,
structure, chemical, substance, object, material, or condition which is in
violation of these Covenants to enter upon such portion of the Properties where
such violation exists and summarily abate or remove the same at the expense of
the Owner, if after thirty (30) days written notice of such violation it shall
not have been corrected by the Owner, Tenant, or agent of the Owner; provided,
however, that whenever stated in these covenants and restrictions that the
Company may serve notice requiring immediate corrective action, and such action
is not performed immediately by the Owner, Tenant, or agent of the Owner, the
Company or its agent shall have the right to enter immediately and summarily
abate or remove such violation at the expense of the Owner. Any such entry and abatement or removal shall
not be deemed trespass.
In addition to
the foregoing the Company or its agent shall have the right, whenever permitted
by this Declaration, to enter immediately (unless otherwise specifically
stated) the Property to implement environmental controls, to take corrective
action, or to take any action necessary.
The cost of such action, when performed by the Company or its agent
shall be paid by the Owner of the Property on which the work is performed. Entrance upon any Property pursuant to the
provisions shall not be deemed a trespass.
Whenever the
Company or its agent is permitted by this Declaration to correct, repair,
enhance, improve, clean, preserve, clear out, remove, or take any action on any
Property or on the easement areas adjacent thereto, entering the Property and taking
such action shall not be deemed a trespass.
Section 5.
Severability. Should any
Covenant herein contained, or any Article, Section, Subsection, sentence,
clause, phrase or term of this Declaration be declared to be void, invalid,
illegal, or unenforceable, for any reason, by the adjudication of any Court or
other tribunal having jurisdiction over the parties hereto and the subject
matter hereof, such judgment shall in no way affect the other provisions hereof
which are hereby declared to be severable and which shall remain in full force
and effect.
Section 6.
Corrective Action. Whenever the
Company or its agent is permitted by this Declaration to correct, repair,
enhance, improve, clean, preserve, clear out, remove, or take any action on any
Property or on the easement areas adjacent thereto, and whenever it is stated
in this Declaration that the cost of such action (hereinafter called the Cost
of Corrective Action) shall be paid by the Owner of the Property on which such
corrective action is performed, the Cost of Corrective Action, together with
such interest thereon at the maximum annual rate permitted by law from the due
date and costs of collection thereof or including a reasonable attorney fee as
hereinafter provided, shall be a charge and continuing lien on the real Property
and improvements thereon, against which the Cost of Corrective Action is
charged, in the hands of the then Owner, his heirs, devisees, personal
representatives, tenants, and assigns, and in addition shall also be the
personal obligation of the Owner of such real Property at the time when such
Cost of Corrective Action becomes due and payable. The Cost of Corrective Action shall be billed
at the completion of such corrective action, and all bills shall be due and
payable thirty (30) days from the date of mailing of same.
If the Cost of
Corrective Action is not paid within thirty (30) days after the due date, the
Company or its agent may bring an action at law against the Property Owner
personally and there shall be added to the amount of such Cost of Corrective
Action the costs of preparing the filing of the complaint in such action and
obtained, such judgment shall include interest on the Cost of Corrective Action
as above provided and a reasonable attorney’s fee together with the costs of
the action.
The lien of the
cost of Corrective Action provided for herein shall be subordinate to the lien
of any first or second deed of trust now or hereafter placed upon any Property
subject to these Covenants and Restrictions.
In the event a creditor (other than the Company or the creditor of the
Company) acquires title to any Property pursuant to foreclosure or any other
proceeding or deed in lieu of foreclosure, said creditor shall be subject to
any lien of the Cost of Corrective Action placed upon such Property during the
time in which the creditor holds title to such Property.
Section 7.
Interpretation. The Board of
Directors of the Association shall have the right to determine all questions
arising in connection with this Declaration, and to construe and interpret its
provisions, and its determination, construction, or interpretation shall be
final and binding. In all cases, the
provisions of this Declaration shall be given that interpretation or construction that will best tend toward the consummation of
the general plan of improvements.
Section 8.
Authorized Action. All actions which
the Association is allowed to take under this instrument shall be authorized
actions of the Association if approved by the Board of Directors of the
Association in the manner provided for in the By-Laws of the Association,
unless the terms of this instrument provide otherwise.
Section 9.
Limited Liability. The Company or its
agent shall not be liable to any Property Owner or to any other person on
account of any claim, liability, damage, or expense suffered, incurred by, or
threatened against any Property Owner or such other person arising out of or in
any way relating to the subject matter of any reviews, acceptances,
inspections, permissions, consents, or required approvals which must be
obtained from the Company or from the County of Alleghany and/or the City of
Covington, Virginia, whether given, granted or withheld.
Section 10.
Assignment of
Rights.
The Company reserves unto itself, its successors and assigns, the right
to assign in whole or in part to the Association its rights reserved in this
Declaration to grant approvals (or disapprovals), to establish rules and
regulations, to administer and enforce the provisions of this Declaration, and
all other rights reserved herein by the Company including, but not limited to,
the right to approve (or disapprove) plans, specifications, color, finish, plot
plan, land management plan, and construction schedules for any or all buildings
or structures to be erected in any or all of the Properties. The assignment of such rights shall be
subject to any conditions, limitations, or restrictions that the Company, in
its sole and uncontrolled discretion, may elect to impose at the time of
assignment. Following the assignment of
such rights, the Association shall assume all of the Company’s obligations
which are incident thereto (if any), and the Company shall have no further
obligation or liability with respect thereto.
The assignment of such right or rights by the Company to the Association
shall be made by written instrument that shall be recorded in the Clerk’s
Office of the Circuit Court of Alleghany County, Virginia.
Notwithstanding
anything in the foregoing to the contrary, so long as the Company, its
successors and assigns, is the Owner of all or any part of the Property subject
to the provisions of this Declaration, the Company shall retain all rights of
easement reserved onto it in this Declaration, and shall, furthermore, retain
all rights of entry granted in this Declaration for the purposes of correcting,
repairing, enhancing, improving, cleaning, preserving, clearing out, removing,
or taking any action to prevent a violation of these Covenants, and the
retention of said rights of easement and entry by the Company shall in no way
create any obligation on the part of the Company to perform any affirmative
action.
The Company
reserves unto itself, its successors and assigns, the right to appoint the
Association its agent for the purpose of administering and enforcing, in whole
or in part, the rights reserved unto the Company in this Declaration. Such appointment may be temporary or
permanent, and shall be subject to any conditions, limitations, or restrictions
that the Company, in its sole and uncontrolled discretion, may elect to impose. Upon any such appointment of the Association
as agent by the Company, the Association shall assume any obligations that are
incident thereto.
Section 11.
Rights of
Noteholders. Any institutional holder of a first mortgage
on a Family Dwelling Unit or Lot will, upon written request, be entitled to (a)
inspect the books and records of the Association during normal business hours,
(b) receive an annual financial statement of the Association within ninety (90)
days following the end of its fiscal year, (c) receive written notice of all
meetings of the Association and the right to designate a representative to
attend all such meetings, (d) receive written notice of any condemnation or
casualty loss that affects a material portion of the property securing its
mortgage, (e) receive written notice of any sixty-day delinquency in the
payment of assessments or charges owed by the Owner of any property on which it
holds the mortgage, (f) receive written notice of a lapse, cancellation, or
material modification of any insurance policy or fidelity bond maintained by the
Association, (g) receive written notice of any proposed action that requires
the consent of a specified percentage of mortgage holders and (h) be furnished
with a copy of the master insurance policy.
IN WITNESS
WHEREOF, the Company has caused this instrument to be executed in its behalf.
a
HORSE MOUNTAIN PROPERTIES COMMUNITY ASSOCIATION, INC.
The foregoing
instrument was acknowledged before me this _____ day of _________ 2005 by David S. Witmer, as Manager of
Middle Mountain, L.L.C., a
The foregoing
instrument was acknowledged before me this _____ day of _________ 2005 by David S. Witmer, as President of Horse
Mountain Properties Community Association, Inc. a
Property Description
All the lots numbered one
through twenty shown collectively as “Horse Mountain Properties” together with
the adjacent 1,328.82 acres, by survey, shown as “Common Area” on the plat
entitled “Survey for Horse Mountain Properties, Jackson River Magisterial
District, Alleghany County, Virginia, Surveyed 28 July 2005” prepared by Vess
Surveying, Inc., dated July 28, 2005, recorded in the Clerk’s Office of the
Circuit Court of Alleghany County, Virginia in Plat Book 30, pages 643-54.