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