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DECLARATION
OF COVENANTS, CONDITIONS AND RESTRICTIONS
INTRODUCTION
This is the basic document for establishing the regime of
LEATHERWOOD MOUNTAINS. An interest in a lot or dwelling unit
in LEATHERWOOD MOUNTAINS consists of three (3) elements:
A. The fee simple title in the lot (including any dwelling
unit located thereon).
B. The easement of enjoyment in the Common Properties.
C. The membership in LEATHERWOOD MOUNTAINS HOMEOWNERS
ASSOCIATION, INC. (The "Association").
These interests are subject to various easements,
restrictions and covenants, and more particularly the
obligation to pay the proportion of assessments established
by the Board of Directors for each lot including any
dwelling unit located thereon. Failure of individual owners
to pay such assessment can result in, among other sanctions,
the creation of a lien on the title interest in their
respective lots (dwelling units), and can be foreclosed.
Thus, the Association is assured of an adequate budget to
provide its services and maintain the properties and the
program making up Leatherwood Mountain and its style of
life.
The Association provides certain services including: access
to all facilities and all roads and open space; the
provision of certain exterior maintenance; and liability
coverage for acts of the Association.
Membership in the Association and acts of the members
(owners) are subject to restrictions sufficient to provide
order and facilitate reasonable opportunities for maximum,
and most enjoyable, uses of the common facilities. Sanctions
or suspension of privileges and the levying of liquidated
damages are provided to enforce the restrictions.
Although a lot (dwelling unit) owner actually owns the
footage on the exterior of his building, any permanent
structure or improvements erected or placed in that space
must have the approval of an architectural review board.
This is necessary to prevent unsightly additions, fences and
structures which are inconsistent with the character of
Leatherwood Mountains as a planned residential community.
INDEX OF DECLARATION OF COVENANTS, CONDITIONS AND
RESTRICTIONS
I. DEFINITIONS
II. PROPERTY SUBJECT TO THIS DECLARATION AND ADDITIONS
THERETO
1. Existing Property
2. Additional Property
3. Excluded Property
III. COMMON AREA PROPERTY RIGHTS
1. Private Areas
2. Reservation of Easement
3. Ownership of Common Areas
4. Owner's Easements of Enjoyment
IV. HOMEOWNER'S ASSOCIATION ADMINISTRATION, MEMBERSHIP AND
VOTING RIGHTS
1. Administration of Common Areas.
2. Rules and Regulations.
3. Membership.
4. Voting Rights and Classes of Membership.
5. Authority To Borrow Funds.
6. Violation or Delinquency.
7. Specific Enforcement.
V. COVENANTS FOR MAINTENANCE ASSESSMENTS
1. Creation of Lien and Personal Obligation for Assessments.
2. Purpose of Assessments.
3. Determination of Assessment Amount.
4. Payment of Assessments.
5. Special Assessments.
6. Notice and Quorum.
7. Exempt Property.
8. Continuance of Lien.
9. Effect of Nonpayment of Assessments: Remedies of the
Association.
10. Certificate of Payment.
VI. ARCHITECTURAL REVIEW
VII. RESTRICTIONS AND REQUIREMENTS
1. Residential Use.
2. Size and Placement of Residences and Structures.
3. Other Requirements.
4. Prohibitions.
5. Easements.
VIII. GENERAL PROVISIONS
1. Enforcement.
2. Term.
3. Mutuality of Benefit and Obligation.
4. Motor Vehicle Speed Limits.
5. Severability.
6. Captions.
7. Right of Declarant or Association to Amend to Achieve
Tax-Exempt Status.
IX. RIGHT OF REPURCHASE
ELK RIDGE COVENANTS AND RESTRICTIONS
STATE OF NORTH CAROLINA
COUNTY OF WILKES
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
WITNESSETH:
WHEREAS, LEATHERWOOD PROPERTIES, a Limited Partnership
herein called the "Declarant", is the fee simple owner of
certain real property located in ELK TOWNSHIP, WILKES
COUNTY, North Carolina, and desires to establish on a
portion thereof a residential community consisting of
single-family residential dwellings to be governed by
LEATHERWOOD MOUNTAINS HOMEOWNERS ASSOCIATION, INC., and
further desires that said property be used, developed,
maintained and managed for the benefit and welfare of owners
of property in LEATHERWOOD MOUNTAINS; and
WHEREAS, the Declarant desires to provide for the
preservation of the values and amenities and the
desirability and attractiveness of the real property in the
Leatherwood Mountains Homeowners Association, Inc.; and for
the continued maintenance and operation of the private
streets and common areas in the community and for a security
system for the protection of property; and
WHEREAS, the Declarant has deemed it desirable for the
efficient preservation of the values and the maintenance and
operation of the private roads and common areas that certain
covenants, conditions, easements, assessments, liens and
restrictions governing the subdivision and development of
tracts of land, and the use and occupancy of tracts in the
Leatherwood Mountains Homeowners Association, Inc., be
established and declared to be covenants running with the
land; and that an agency be created to which will be
delegated the powers and duties of maintaining the roads and
common areas, providing security, enforcing the covenants
and restrictions, and collecting and disbursing assessments;
NOW, THEREFORE, in consideration of the premises, the
Declarant hereby declares that all of the property hereafter
described at Map Book 8, Page 312, Wilkes County Registry of
Deeds, or that property that hereafter may be made subject
to this Declaration of Covenants, Conditions and
Restrictions (hereafter called the "Restrictions") are and
shall be held, transferred, sold, conveyed, occupied and
used subject to the restrictions and matters hereinafter set
forth, said Restrictions and matters to be construed as
covenants running with the land which shall be binding on
all parties having or acquiring any right, title or interest
in the described property, or any part thereof, and which
shall inure to the benefit of each owner thereof, for and
during the time hereinafter specified. Every party hereafter
acquiring any lot, or portion thereof, in the described
properties, by acceptance of a deed conveying title thereto
or by execution of a contract for the purchase thereof,
whether from the Declarant or a subsequent owner of such
lot, shall accept such deed or contract subject to each and
all of the covenants, restrictions and agreements contained
within these Restrictions, as well as any additions or
amendments hereto, and also subject to the jurisdiction,
rights and powers of the Declarant, the Leatherwood
Mountains Homeowners Association, Inc., and their successors
and assigns. Each grantee of any lot subject to these
Restrictions, by accepting the deed or contract thereto,
shall for himself, his heirs, personal representatives,
successors and assigns, covenant, consent and agree to and
with the Declarant, the Association, and with grantees and
subsequent owners of each of the lots within the Subdivision
to keep, observe, comply with and perform said Restrictions
and agreements.
ARTICLE I
DEFINITIONS
1. "Association" shall mean and refer to the Leatherwood
Mountains Homeowners Association, Inc., a non-profit
corporation organized and existing under the laws of the
State of North Carolina, its successors and assigns.
2. "Common Areas" shall mean and refer to any and all real
property owned or held by the Association for the common use
and enjoyment of all members and all riding trails, streets
and roads, greenways and recreational areas and other common
areas located within the Development which are maintained by
the Association.
3. "Declarant" shall mean and refer to the Declarant herein,
Leatherwood Properties, a Limited Partnership, its
successors or designated assigns.
4. "Lot" shall mean and refer to (a) any plot of land
identified as a lot at Map Book 8, Page 312, Wilkes County
Registry of Deeds, or on any deed or contract of conveyance
from the Declarant; and (b) any numbered plot of land shown
on a recorded map or survey of Leatherwood Mountains or any
part thereof with the exception of the Common Areas and
non-residential areas.
5. "Owner" shall mean and refer to the record owner, whether
one or more persons or entities, of the fee simple title to
any lot as herein defined, excluding however, those parties
having such interest merely as a security interest for the
performance of an obligation.
6. "Development" or "Leatherwood Mountains" shall mean that
land divided into residential lots as described at Map Book
8, Page 312, Wilkes County Registry, as well as any
adjoining tracts which the Declarant should choose to add
and subject to these restrictions.
7. "Member" shall mean and refer to every person or entity
who holds membership in the Association.
ARTICLE II
PROPERTY SUBJECT TO THIS DECLARATION AND ADDITIONS THERETO
1. Existing Property.
The real property which is and shall be held, transferred,
sold, conveyed and occupied subject to this Declaration is
located in Elk Township, Wilkes County, North Carolina, and
is more particularly described at Map Book 8, Page 312,
Wilkes County Registry.
2. Additional Property.
The Declarant reserves the absolute right, exercisable in
its sole discretion from time to time, to add other lots to
Leatherwood Mountains, and to subject such additional lots
to the terms of the Restrictions. Such additions shall be
made in order to extend the scheme of the Restrictions to
other real property that may be developed as part of
Leatherwood Mountains and to bring such additional property
within the jurisdiction of the Association, thereby
subjecting such additions to assessment for their just share
of the Association's expenses. Such additions shall be made
by filing of record a Supplemental Declaration of Covenants
and Restrictions, which shall identify the real property to
be included and shall incorporate these Restrictions by
reference. The Declarant reserves the right to use any
existing roads for the benefit of such additional
developments.
3. Excluded Property.
No property of Declarant shall be subject to these
restrictions except that property made subject thereto as
herein provided. No property of Declarant shall be subject
to any restrictions by implication arising from Declarant
imposing these restrictions on the property herein
identified.
ARTICLE III
COMMON AREA PROPERTY RIGHTS
1. Private Areas.
Each of the streets in the Development now or hereafter
constructed or designated on any recorded or unrecorded map,
is a private street with the exception of Wilkes County SR
1162, SR 1155, and SR 1166, and every common area within the
Development is a private area, and neither the execution nor
recording of any plat nor any other act of the Declarant or
Declarant's successor in title to all or any portion of the
property is, or is intended to be, or shall be construed as,
a dedication to the public of any streets or common areas,
except those that hereafter may be dedicated by a specific
written and recorded deed or agreement of dedication.
2. Reservation of Easement.
The Declarant reserves for itself the right to offer to
dedicate or transfer any streets or other part of the common
area to any public agency, authority or utility if it so
desires. The Declarant reserves for itself and for its
successors and assigns a non-exclusive easement over each of
the streets in the Development now or hereafter constructed
or designated on any recorded or unrecorded map. The
Declarant reserves the right to use said roads for the
development of any adjoining properties which Declarant may
own now or in the future. The Declarant also reserves for
itself, its successors and assigns, the right to grant and
reserve easements and right-of-ways through, under, over and
across Leatherwood Mountains for the installation,
maintenance and inspection of the lines and appurtenances
for public or private water, sewer, drainage, gas,
electricity, telephone, cable television and other
utilities, except this reservation shall not apply to lots
in the Development except in easements within such lots
shown on any recorded plat of the Development or any part
hereof or as reserved in Section 5 of Article VII hereof. An
offer of dedication places no liability upon any public
agency to accept the dedicated streets or other property.
The Declarant acknowledges that the streets, other than
existing State Roads, within Leatherwood Mountains
Development are not constructed to the State of North
Carolina Department of Transportation's minimum standards
for subdivision streets. Therefore, the Department will not
accept these streets into its secondary roads system. All
private street maintenance, including repair and snow
removal, will be the responsibility of the Declarant or the
Association. The Declarant acknowledges that it is the
policy of the Wilkes County Board of Education that school
buses will not travel on private streets.
3. Ownership of Common Areas.
The Declarant may retain the legal title to any common
properties, other than streets or roads shown on any
recorded plat of the properties, until such time as it has
completed improvements, if any, thereon and until such time
as in the opinion of the Declarant, the Association is able
to maintain the same. Prior to the date of any transfer of
maintenance of the streets and roads to the Association,
said streets and roads shall be maintained by the Declarant.
At the time of transfer of maintenance to the Association
said streets and roads shall be common properties and the
expense of maintenance shall be borne by the Association.
4. Owner's Easements of Enjoyment.
Every lot owner, including lot or homeowners in adjoining
areas developed at a future time, shall have a non-exclusive
right-of-way, right to and easement of enjoyment in and to
the roads and common area which shall be appurtenant to and
shall pass with the title to every lot, subject to the
provisions of this Declaration and the Charter and Bylaws of
the Association as to the following provisions:
a. The right and easement of enjoyment in and to the roads
shall be limited to those roads owned or maintained by the
Association.
b. The right to the Association to limit use of the roads
and common areas to owners, their families and guests.
c. The right of the Association to suspend the voting rights
and other rights of membership by an owner for any period
during which any assessment against his lot remains unpaid:
and for a period not to exceed sixty (60) days for any
infraction of its published rules and regulations.
d. The right of the Association to grant an easement in,
dedicate or transfer all or any part of the roads or common
areas to any public agency, authority, or utility for such
purposes, subject to such conditions as may be agreed to by
the members.
e. The right of the Association to charge reasonable
admission and other fees for the use of any recreational
facility situated upon the common area.
f. The right of the Association, in accordance with its
Charter and Bylaws, to borrow money for the purpose of
improving the common area and facilities and in aid thereof
to mortgage the common area, or any portion thereof, and the
rights of such mortgage in said properties shall be
subordinate to the rights of the homeowners hereunder.
ARTICLE IV
HOMEOWNER'S ASSOCIATION
ADMINISTRATION, MEMBERSHIP AND VOTING RIGHTS
1. Administration of Common Areas.
The administration of the roads and common areas, including
maintenance, repair, and upkeep of the private streets and
provision for security of the property, including the acts
required by the Declaration, the Bylaws, and Articles of
Incorporation of the Association, shall be performed by the
Association. The Association shall be required to maintain
those roads as shown on recorded map at Map Book 8, Page
312, Wilkes County Registry, which serve as access to a lot
or common area. Any road which is wholly within a lot, and
which does not serve as access to another lot, shall not be
maintained by the Association.
2. Rules and Regulations.
The Association may also adopt and enforce rules and
regulations not inconsistent with these Restrictions, the
Articles of Incorporation or Bylaws of the Association for
the operation and administration of the Association and its
property.
3. Membership.
Every person or entity who is a record owner of a fee or
undivided fee interest in any lot in Leatherwood Mountains
shall be a member of the Association. Membership shall be
appurtenant to and may not be separated from ownership of
any lot, and shall be transferred automatically when the
owner conveys, devises, gives or otherwise transfers his
lot, even though such conveyance, devise or gift does not
make mention of the membership rights of the Association.
Such membership is not intended to apply to those persons or
entities who hold an interest in any lot merely as security
for the performance of an obligation to pay money, e.g.,
mortgages or deeds of trust; however, if such secured party
should realize upon his security and become the fee owner of
a lot, he and his assigns of the lot will then be subject to
all the requirements and limitations imposed in these
Restrictions on owners of lots within the development and on
members of the Association, including those provisions with
respect to payment of annual charges. The Board of Directors
may include reasonable rules relating to the proof of
ownership of a lot in the Leatherwood Mountains Homeowners
Association, Inc.
4. Voting Rights and Classes of Membership.
a. Membership.
Every person or entity who is a record owner of a fee simple
interest in any lot or dwelling unit is subject by this
Declaration to assessment by the Association and shall be a
member of the Association; provided, however, that any such
person or entity to hold such interest merely as a security
for the performance of an obligation shall not be a member.
b. Voting Rights.
The Association shall have two classes of voting membership:
(1) Class A: Class A members shall be all owners of lots and
owners of any type or dwelling unit, other that the
Declarant. Any Class A member shall be entitled to one vote
for each dwelling unit or for each lot which he owns. When
more than one person or entity holds an interest in any lot
or dwelling unit, all such persons or entities shall be
members. The vote for such lot or dwelling unit shall be
exercised as they determine, but in no event shall more than
one vote be cast with respect to any lot, nor shall any vote
be fractionalized.
(2) Class B: The Class B member shall be the Declarant,
which shall be entitled to three (3) votes for each lot and
three (3) votes for each dwelling unit owned by it.
5. Authority To Borrow Funds.
The Association shall possess the right, as provided in the
Bylaws, to borrow money for the purpose of improving the
common areas and to mortgage any portions of the common
areas necessary to secure loans for such improvements.
Provided, however, that no such borrowing or mortgaging
shall be done without a prior vote of approval by two-thirds
(2/3) of each Class of members at a meeting duly called for
such purpose, in accordance with the Bylaws.
6. Violation or Delinquency.
During any period in which a member shall be in default in
the payment of any annual, special or other assessment
levied by the Association, his rights to vote and all other
rights and incidents of membership in the Association may be
suspended by the Board of Directors until such assessment is
paid. A member's voting and use rights may also be suspended
for violation of the Association's published rules and
regulations; provided, that prior to any suspension for such
violation, the Board of Directors (or a committee thereof)
shall conduct a hearing regarding the alleged violation
after giving the accused member at least ten (10) days prior
written notice specifying each alleged violation and setting
the time, place and date of the hearing. At the hearing, the
accused member shall have the right to call and question his
own witnesses as well as any opposing witnesses. A
determination of violation as well as the terms of any
suspension shall be made only by a majority vote of the
Board.
7. Specific Enforcement.
The Association also reserves the right to direct its agents
and employees to enter upon the lot of any Association
member for the purpose of repairing, maintaining or
restoring the lot or exteriors of any buildings or
improvements thereon, including the removal of unsightly
weeds, underbrush, or other items. Provided, however, that
the Association may exercise such right only when the lot to
be entered has not been maintained in a manner satisfactory
to the Declarant or the Architectural Review Committee
established in Article VI, and after approval of such action
by two-thirds (2/3) vote of the Association's Board of
Directors. No entry may be made under this subsection
without first providing the owner of the lot to be entered
at least ten (10) days prior written notice requesting him
to properly repair or maintain his lot; any entry by the
Association for the foregoing purpose shall be only between
the hours of 7:00 a.m. and 6:00 p.m. on any day except
Sunday. Such entry as herein provided shall not constitute a
trespass, and the Association shall bear no liability for
performing any acts reasonable necessary or appropriate in
connection with the execution of these provisions. All costs
of such exterior maintenance shall be added to and become
part of the annual assessment applicable to such lot or
tract, and shall constitute a permanent lien upon such lot
until paid. In addition, the lot owner shall be personally
liable to the Association for such costs, all as provided in
Article V.
ARTICLE V
COVENANTS FOR MAINTENANCE ASSESSMENTS
1. Creation of Lien and Personal Obligation for Assessments.
The owner of each lot in Leatherwood Mountains, by
acceptance of a deed therefor, and Declarant, is deemed to
covenant and agree to pay to the Association: (a) annual
assessments or charges: and (b) special assessments for
capital improvements. Such covenant will be deemed to arise
whether or not it is expressly stated in the deed or other
conveyance to the owner. The annual and special assessments,
together with interest, costs and reasonable attorney's
fees, as well as any charges imposed under Section 8 of
Article IV above, shall be a charge on the land and shall
constitute a continuing lien upon the property against which
each assessment is made. Each such assessment, together with
interest, costs and reasonable attorney's fees, shall also
be the personal obligation of the person who was owner of
such property at the time when the assessment fell due.
However, the personal obligation for delinquent assessments
shall not pass to his successors in title (other than as the
continuing lien on the land) unless expressly assumed by
such successor.
2. Purpose of Assessments.
All assessments levied by the Association shall be used to
provide funds for such purposes as the Association may
determine are for the benefit of its members. Such purposes
may include, but are not limited to: maintenance,
landscaping and beautification of the roads and common
areas; construction, repair and replacement of improvements
upon the roads and common areas; the cost of labor,
equipment, materials, management and supervision thereof;
provided security to the Development by mechanical gates
and/or guards and patrols or other means; the pavement of
taxes assessed against the roads and common areas; the
procurement and maintenance of insurance; the employment of
attorneys, accountants and other professionals to represent
the Association when necessary or useful; the provision of
other services intended to promote the health, safety and
welfare of the members; and such other needs as may arise.
3. Determination of Assessment Amount.
Prior to December 31 of each year the Board of Directors
shall prepare a budget for the next calendar year and based
upon such budget, the Board shall fix the assessment amount
for each class of property owned upon the following basis:
a. Each lot upon which is situated a completed, habitable
dwelling shall be assessed (1) share; and
b. All other lots shall each be assessed one-half (1/2) of
one share.
4. Payment of Assessments.
All annual and special assessments provided for herein shall
commence as to all lots on the first day of the month
following the transfer of title to owner. The annual
assessment shall be adjusted according to the number of
months remaining in the calendar year. Thereafter, payment
of assessments shall be made annually to the Association or
its designee, on or before the due date established by the
Board; provided, however, that the Board of Directors shall
fix the amount of the annual assessment at least thirty (30)
days before the due date and written notice of the charge so
fixed shall be sent to each member.
5. Special Assessments.
In addition to the annual assessment authorized above, the
Association may levy, in any assessment year, a special
assessment applicable to that year only for the purpose of
defraying, in whole or in part, the cost of acquisition of
and any construction, reconstruction, repair or replacement
of a capital improvement upon common areas, including the
necessary fixtures and personal property related thereto.
Prior to the imposition of any such special assessment,
two-thirds (2/3) of each Class of members voting at a
meeting called to consider such assessment and at which a
quorum was present, must vote their assent to its
imposition.
6. Notice and Quorum.
Except for a vote to amend the covenants and restrictions
contained herein, which vote shall be conducted pursuant to
Section 1 of Article VIII below; the notice and quorum
required for any actions of the Association authorized by
Article IV and V of this Declaration or as otherwise in the
Articles of Incorporation, the Bylaws or by law provided,
shall be as follows:
a. Written notice of any meeting called for the purpose of
taking any action authorized under Articles IV and V of
these Restrictions shall be sent to all members not less
that ten (10) days not more than sixty (60) days in advance
of the meeting.
b. Members may attend and may vote in person or by proxy
executed in writing by a member. No proxy shall be valid
after eleven (11) months from the date of its execution, or
after conveyance by the member of his lot.
c. At any meeting called for the purpose of taking some
action by the Association membership the presence in person
or by proxy of members entitled to cast 20% of all the votes
shall constitute a quorum. If the required quorum is not
present, another meeting may be called subject to the same
notice requirement, and any number of members attending such
subsequent meeting, so long as such number represents at
least 10% of all the outstanding votes shall constitute a
quorum. No such subsequent meeting shall be held more than
six (6) months following the scheduled date of the preceding
meeting.
7. Exempt Property.
All lots owned by the Declarant and any lot which the
Declarant may hereafter designate for common use as part of
the common areas and convey to the Association, as well as
all lots dedicated to and accepted by a local public
authority, shall be exempt from the assessments and charges
created herein. In addition, the lien of a mortgage or deed
of trust representing a first lien placed upon any lot for
the purpose of purchasing the lot or for permanent financing
and/or constructing a residence or other improvement thereon
recorded in accordance with the applicable state laws from
the date of recordation, shall be superior to any and all
liens provided for herein. The sale or transfer of any lot
by foreclosure of any first mortgage or any proceeding in
lieu thereof, shall not extinguish the lien of such
assessments as to payments due prior to such sale or
transfer, provided such transfer shall not have been made
for the purpose of defeating the lien.
8. Continuance of Lien.
a. The assessments and charges created herein shall
constitute a continuing lien upon all lots in the
Subdivision and no owner may waive or in any way reduce his
liability for the assessment by non-use of the common areas
or abandonment of his lot.
b. In the event that any charge or assessment created in
this Declaration remains unpaid by an Association member for
thirty (30) days after the due date announced by the Board
of Directors, the Association, through its agents and
employees, may record with the Wilkes County Clerk of Court
a notice of the lien created by this Declaration.
9. Effect of Nonpayment of Assessments: Remedies of the
Association.
In the event that any assessment or charge created herein
remains unpaid for thirty (30) days after the due date
announced by the Board of Directors, such unpaid assessment
shall bear interest from the date of delinquency, said
interest rate to be set by the Board of Directors from time
to time, but in no event shall it exceed the maximum
interest rate allowed by law. The Association, its agent or
representative, may bring an action at law against the owner
personally obligated to pay the same and/or foreclose the
lien against the lot subject to the unpaid assessment in
either case, interest, costs and reasonable attorney's fees
shall be added to the amount of such assessment to the
extent allowed by law. Any foreclosure conducted pursuant to
this section shall comply fully with the North Carolina
procedure for judicial foreclosure.
10. Certificate of Payment.
The Association shall, upon demand at any time, furnish a
certificate in writing signed by an officer of the
Association certifying that the charges on a specified lot
have been paid or that certain charges against said lot
remain unpaid, as the case may be. A reasonable charge may
be made by the Board of Directors of the Association for the
issuance of these certificates. For the purposes of
obtaining a certificate, interested parties should contact
the Association at its address.
ARTICLE VI
ARCHITECTURAL REVIEW
1. The Declarant shall have the responsibility of enforcing
the requirements set forth in this Article until such time
as it passes such responsibility to the Architectural Review
Committee (the "Committee") which thereafter, shall assume
and be responsible for enforcement. Reference in this
Article to the Declarant shall mean the Committee after such
time as the responsibility is passed to the Committee. The
following provisions regarding architectural review shall
apply to each and every lot now or hereafter subject to this
Declaration.
2. No construction, reconstruction, remodeling, alteration,
or addition to any building, improvement, or structure of
any kind, upon any lot in the Development, shall be
commenced without the prior written approval of the
Declarant of the proposed site location, plans and
specifications.
3. There shall be submitted to the Declarant two (2)
complete sets of the final plans and specifications for any
and all proposed improvements, the erection or alteration of
which is desired, and no structures or improvements of any
kind shall be erected, altered, placed or maintained upon
any lot unless and until the final plans, elevations, and
specifications therefore have received such written approval
as herein provided. Such plans shall include plot plans
showing the location on the lot of the building, wall, fence
or other structure proposed to be constructed, altered,
placed or maintained, together with specifications for the
proposed construction material, color schemes for roofs and
exteriors thereof and proposed grading and landscaping.
4. The Declarant shall approve or disapprove plans,
specifications, and details within thirty (30) days from the
receipt thereof. In the event the Declarant fails to approve
or disapprove such plans and specifications within thirty
(30) days, approval will not be required and the
requirements of this Section will be deemed to have been
fulfilled. One (1) set of said plans and specifications and
details with the approval or disapproval endorsed thereon,
shall be returned to the persons submitting them and the
other copy thereof shall be retained by the Declarant for
its permanent files. The Declarant shall have the right to
charge a reasonable fee for receiving each application for
approval of plans and specifications in an amount not to
exceed $50.00.
5. At such time as the Declarant elects to transfer to the
Association the architectural review responsibilities, the
Association's Board of Directors shall appoint a standing
committee of the Board, to be called the Architectural
Review Committee, which shall initially consist of three (3)
members to be appointed from among the Association's
members. Upon its appointment, the Committee shall assume
from the Declarant all authority to review and approve
plans, specifications, and details as otherwise provided
herein. The initial committee shall serve for a term of two
(2) years, after which the committeemen shall be appointed
by the Association's Board of Directors, pursuant to its
Bylaws, and shall serve for a term of one (1) year; provided
further that the number of committeemen may be increased
from three (3) to five (5) by a resolution of the
Association's Board of Directors.
6. After its appointment, the Architectural Review Committee
shall establish written architectural and aesthetic criteria
to be used in reviewing all plans, specifications, and
details submitted for approval, and copies of such criteria
may be obtained upon request from the Committee. Such
written criteria shall be subject to revision or amendment
by the Committee at all times; provided, however, that no
amendment to or change in such criteria shall become
effective until committed to writing and approved by the
Committee in the same manner as the previously controlling
criteria; and that no amendment or change in such criteria
shall have retroactive application.
7. The purpose of the Architectural Review provisions set
forth herein is to protect the value of all real property
subject to this Declaration and to promote the interest,
welfare, and rights of all development property owners.
Decisions of the Declarant or Architectural Review Committee
approving or disapproving of plans and specifications shall
be based on criteria it establishes for the Development,
consistently applied, but such decisions shall be final and
not subject to review or appeal.
ARTICLE VII
RESTRICTIONS AND REQUIREMENTS
1. Residential Use.
No lot shall be occupied or used except for single-family
residential purposes, or as common areas if owned by the
Association. No structure shall be erected, placed or
permitted to remain on any lot other than one detached,
single-family residence dwelling and such outbuildings as
are usually accessory to a single-family residence dwelling
including a private garage or barn facility. This shall not
restrict the Association or the Declarant from constructing
on any lot, security, maintenance, or other facilities for
the benefit of the Development. No obnoxious or offensive
activity shall be carried on upon the properties which may
be or may become a nuisance or annoyance to the
neighborhood.
2. Size and Placement of Residences and Structures.
a. No dwelling having more than three (3) above ground
stories or having less than 1200 square feet (with some
consideration being given to covered non-heated areas) shall
be constructed upon any lot in the development, and the
Declarant and its successor Architectural Review Committee,
as provided in Article VI, retain the right to withhold
approval of plans for any split level, two or three story
residence where such a structure is unsuited to the proposed
lot's terrain, where the erection of such a structure would
block or materially interfere with the primary view or vista
or solar access of another lot, or would not be in keeping
with the general development of surrounding area.
b. The Declarant and its successor Architectural Review
Committee shall have the authority to promulgate regulations
pertaining to the height and size requirements of all other
types of structures, including but not limited to
outbuildings, fences, walls and copings.
c. No above-grade structure (except fences or walls) may be
constructed or placed on any lot within:
(1) Forty-five (45) feet from the front line of the lot,
which is the center line of road in front of such lot.
(2) Fifteen (15) feet from each lot side line, unless the
side line is the center line of a road, in which case
forty-five (45) feet is the setback requirement.
(3) Twenty-five (25) feet from the rear line of each lot.
(4) A corner lot shall be deemed to have a front line on
each street on which the lot abuts, and such lot need only
have one rear yard as defined by (3) above.
d. Declarant or its successor Architectural Review Committee
in its discretion shall have the right to waive said setback
line requirements.
3. Other Requirements.
a. All plumbing fixtures, dishwashers, toilets or sewage
disposal systems shall be connected to a septic tank sewage
system constructed by the lot owner and approved by the
appropriate governmental authority and the Declarant, unless
public sewage becomes available in the Subdivision.
b. Once construction of improvements is started on any lot,
the improvements must be substantially completed in
accordance with plans and specifications, as approved,
within one (1) year from commencement.
c. No residence shall be occupied until the same has been
substantially completed in accordance with its plans and
specifications and a certificate of occupancy has been
issued by the Declarant or the Architectural Review
Committee.
d. All structures constructed or placed on any lot shall be
built of substantially new materials and no used structures
shall be relocated or placed on any such lot, without
approval of the Declarant or its successor Architectural
Review Committee.
e. Every fuel storage tank shall be buried below the surface
of the ground or screened by fencing or shrubbery to the
satisfaction of the Declarant or Architectural Review
Committee. Every outdoor receptacle for ashes, trash,
rubbish or garbage shall be installed underground, screened
or so placed and kept as not to be visible from any street,
except for common receptacles provided by or with the
approval of the Declarant or Architectural Review Committee.
f. Any dwelling or outbuilding on any lot which may be
destroyed in whole or in part by fire, windstorm or for any
other cause or act of God must be rebuilt or all debris
removed and the lot restored to a sightly condition with
reasonable promptness, provided, however, that in no event
shall such debris remain longer than three (3) months.
g. It shall be the duty of each owner to maintain his or her
lot, together with the exterior of all improvements located
therein, in a neat and attractive condition. Such
maintenance shall include, but shall not be limited to,
painting, repairing, replacing and caring for roofs,
gutters, downspouts, building surfaces, trees, shrubs,
walks, and other exterior improvements. In the event an
owner shall fail to maintain the premises and improvements
situated thereon in a manner satisfactory to the
Architectural Review Committee, the Association retains the
right to enter upon such premises for the purpose of
effecting needed maintenance and repairs as provided in
Article IV, Section 7 herein.
4. Prohibitions.
a. No mobile homes shall be permitted on any lot.
b. No privies or outside toilets shall be constructed or
maintained on any lot.
c. No temporary house, trailer, garage, storage shed or
other outbuilding shall be placed or erected on any lot,
provided, however, that the Declarant or Architectural
Review Committee may grant permission for any such temporary
structures for storage of materials during construction. No
such temporary structures as may be approved shall be used
at any time as a dwelling place.
d. No permanent outdoor lights or permanent light sensitive
lights shall be permitted on any lot, if said light or the
light from said light is visible from any other lot.
e. No sign (including but not limited to "For Sale" or
similar signs) billboard, or other advertising structure of
any kind may be erected or maintained upon any lot except
after applying to and receiving written permission from the
Declarant or Architectural Review Committee.
f. No stripped, partially wrecked, or junk motor vehicle, or
part thereof, shall be permitted to be parked or kept on any
street or lot.
g. All outdoor clothes poles, clothes lines and similar
equipment shall be so placed or screened by shrubbery as not
to be visible from any street.
h. No structure erected upon any lot may be used as a model
exhibit or house unless prior written permission to do so
shall have been obtained by the Declarant or Architectural
Review Committee.
i. No noxious, offensive or illegal activities shall be
carried on any lot nor shall anything be done on any lot
that shall be or become an unreasonable annoyance or
nuisance to the neighborhood.
j. No oil or natural gas drilling, refining, quarrying or
mining operations of any kind shall be permitted upon or in
any lot and no derrick or other structure designed for use
in boring for oil or natural gas shall be erected,
maintained or permitted on any lot.
k. No on street vehicular parking shall be permitted except
as permitted by and under regulation issued by Declarant or
the Architectural Review Committee.
l. No tree over six inches in diameter shall be removed from
any lot without the prior written consent of the Declarant,
except trees required to be removed for construction of the
approved residence or appurtenant structures.
m. No trash, ashes, garbage or other refuse shall be dumped
or stored or accumulated on any lot in the Development. In
the event that the owner of any lot permits trash to collect
on the same and on request fails to remove the trash within
thirty (30) days, agents of Declarant or Architectural
Review Committee may enter upon the said lot to remove the
trash, without such entrance and removal being deemed a
trespass, all at the expense of the owner of said lot,
provided, however, that such expense will not exceed
$100.00. This provision shall not be construed as an
obligation on the part of the Declarant or Architectural
Review Committee to provide trash removal service. No
outside burning of wood, leaves, trash, garbage or household
refuse shall be permitted.
n. There shall be no access through perimeter lots to the
Interior of the Development.
o. No lot shall be subdivided, or its boundary lines changed
except with the written consent of the Declarant or
Architectural Review Committee; however, the Declarant
hereby expressly reserved to itself, its successors or
assigns, the right to replat any lots shown on the plat of
any of said development or part thereof owned by it in order
to create a modified lot or lots, or other parcels, without
permission or joinder of any lot owner whose lot lines are
not affected by such replatting. The restrictions and
covenants herein apply to any lots resulting therefrom as if
the resulting lot or lots had been originally platted in
such manner. All further subdivision or replatting shall be
subject to the provisions of the Subdivision Regulations of
Wilkes County, North Carolina.
5. Easements.
a. All of the properties, including lots and common area,
shall be subject to such easements for driveways, walkways,
trails, parking areas, water lines, sanitary sewers, storm
drainage facilities, gas lines, telephone and electric power
lines, television antenna lines and other public utilities
as shall be established by the Declarant or by his
successors in title and the Association shall have the power
and authority to grant and establish upon, over, under and
across the common area conveyed to it, such further
easements as are requisite for the convenient use and
enjoyment of the properties.
b. It is contemplated that as Leatherwood Mountains is
developed the Declarant will create pedestrian access
easements which will provide for members convenient means of
ingress and egress to and from the common areas. Such
easements shall be for pedestrian traffic only and no
vehicles shall be permitted to use such easement, except for
bicycles or horses.
c. The Declarant reserves for itself, its successors and
assigns, for purposes incident to its development of the
real property subject to these Restrictions, the following
easements and/or right-of-way:
(1) An easement over each lot within the road right-of-way
and a fifteen (15) foot strip along the rear and side lines
for the purpose of installing, operating and maintaining
utility lines and mains and surface water drainage ditches
or lines;
(2) The right to trim, cut and remove any trees and brush
and to locate guy wires and braces within the road
rights-of-way, and front, rear and side line setback areas
for the installation, operation, and maintenance, together
with the right to install, operate and maintain gas, water
and sewer mains and other services for the convenience of
the property owners; and
(3) The right to withdraw water from any river, stream,
creek or other above ground water source for the benefit of
a property owner whom the Declarant has determined is unable
to obtain a sufficient quantity of potable water at
reasonable expense within his lot. The method and location
of such water withdrawal devises shall be subject to
Declarant's approval.
d. The Declarant reserves for itself, its successors or
assigns an exclusive easement for the installation and
maintenance of radio and television transmission cables
within the rights-of-way and easement areas reserved and
defined above.
e. Declarant reserves unto itself, its successors and
assigns, and for the benefit of all lot owners in the
development, the street and road rights-of-way shown on the
plats now or hereafter recorded of the development for
purposes of ingress and egress, for maintenance of utility
lines and mains and for drainage, and no lot owner may
interfere with such rights-of-way or such uses therein.
f. On each lot, the rights-of-way and easement areas
reserved by the Declarant shall be maintained continuously
by the Association but no structures, plantings or other
material shall be placed or permitted to remain or other
activities undertaken which may damage or interfere with the
installation or maintenance of the road, or utilities, which
may change the direction or flow of drainage channels in the
easements, which may obstruct or retard the flow of water
through drainage channels in the easements, or interfere
with established slope ratios or create erosion or sliding
problems, provided, however, that the existing location of a
drainage channel may be relocated, provided such relation
does not cause an encroachment on any other lot in the
development. Improvements within such areas shall also be
maintained by the respective lot owner at the lot owner's
expense, provided that the plans for relocation are
submitted to the Declarant or Architectural Review Committee
and approved in writing.
ARTICLE VIII
GENERAL PROVISIONS
1. Enforcement.
The Association shall have the right to enforce, by any
proceeding at law or in equity, all restrictions,
conditions, covenants, reservations, liens and charges now
or hereafter imposed by the provisions of this Declaration.
Failure by the Association or by any owner to enforce any
covenant or restriction herein contained shall in no event
be deemed a waiver of the right to do so thereafter.
2. Term.
These Restrictions shall affect and run with the land and
shall exist and be binding upon all parties and all persons
claiming under them until January 1, 2017. By accepting a
deed to a lot subject to these Restrictions, the lot owners
agree that after January 1, 2017, these restrictions shall
be extended automatically for successive periods of ten (10)
years each, unless an instrument signed by the members
holding more than fifty percent (50%) of the voting rights
in the Association has been recorded, agreeing to change the
covenants in whole or in part; provided, however, that at
any time after January 1, 1990, these Restrictions may be
amended by the vote of two-thirds (2/3) of each Class of
members of the Association to make variations in the
Restrictions but not to make changes that would annul any
material rights of owners provided herein.
3. Mutuality of Benefit and Obligation.
The Restrictions and agreements set forth herein are made
for the mutual and reciprocal benefit of each and every lot
in the development and are intended to create mutual,
equitable servitudes upon each lot in favor of each and all
of the other lots therein; to create a privity of contract
and estate between the grantees of said lots, their heirs,
successors and assigns, and to the Association, and shall,
as to the owner of each lot, his heirs, successors and
assigns, operate as covenants running with the land for the
benefit of each and all other lots in the development and
their respective owners. Declarant, so long as it shall own
a lot or any common area in its own name, any lot owner or
the Association shall have the right to enforce these
Restrictions.
4. Motor Vehicle Speed Limits.
a. Speed limits for streets and the rules governing the use
of common areas within the development shall be as
promulgated from time to time by the Association, his
successors and assigns. Appropriate postings of these speed
limits are to be made. The Association shall have the power
to assess fines for the violation of the motor vehicle speed
limits in accordance with a schedule of fines promulgated by
the Association. Every such fine shall be paid promptly upon
its being assessed; if it is not, the Association may add
the amount of the fine to the annual charge made by the
Association pursuant to Article V of these Restrictions.
b. No motorized vehicle, including motorcycles, motorbikes,
etc., except a duly licensed vehicle, shall be operated on
any street and no such vehicle shall be operated except by a
duly licensed operator.
5. Severability.
Every part of these Restrictions are hereby declared to be
independent of, and severable from the rest of the
Restrictions and of and from every other one of the
Restrictions and of and from every combination of the
Restrictions. Therefore, if any of the Restrictions shall be
held to be invalid or to be unenforceable or to lack the
quality of running with the land, that holding shall be
without effect upon the validity, enforceability, or
"running" quality of any other one of the Restrictions.
6. Captions.
The captions preceding the various paragraphs and
subparagraphs of the Restrictions are for convenience or
reference only, and none of them shall be used as an aid to
construction of any provision of these Restrictions.
Wherever and whenever applicable, the singular form of any
word shall be taken to mean or apply to the plural, and the
masculine form shall be taken to mean or apply to the
feminine or to the neuter.
7. Right of Declarant or Association to Amend to Achieve
Tax-Exempt Status.
The Declarant, for so long as it shall retain control of the
Association, and thereafter, the Board of Directors of the
Association, may amend this Declaration as shall be
necessary, in its opinion, and without the consent of any
owner, in order to qualify the Association or the properties
or any portion thereof, for tax-exempt status. Such
amendment shall become effective upon the date of its
recordation in the Wilkes County Registry.
ARTICLE IX
RIGHT OF REPURCHASE
Declarant reserves unto itself, its successors and assigns,
the right of first refusal to purchase the lots in
Leatherwood Mountains Development. Prior to the sale of any
lot in the Development, the owner thereof shall notify
Declarant in writing setting forth the price and terms of
sale, and the name and address of the purchaser. Such
notification shall be made by certified mail, return receipt
requested, and shall constitute an offer to sell said
property to Declarant for the price and on the terms set
forth therein. Declarant shall have twenty (20) days after
receipt of said notice to accept the offer. Notice of
acceptance shall be made by certified mail, return receipt
requested, and shall be deemed made when deposited in the
United States mails. If Declarant fails to accept the offer
within said time period, the owner shall be free to sell the
property to the identified purchaser at the price and under
the terms set forth in the notice to Declarant. If the sale
does not close within six (6) months after expiration of the
twenty (20) day offer to Declarant, the procedure set forth
herein must be reinstituted. This first refusal right shall
not apply to any conveyance resulting from the foreclosure
of a deed of trust, security agreement or other lien; by
operation of law or by devise upon the death of any owner;
or to a bona fide gift: provided that, the grantee of said
property shall hold said property subject to the right of
first refusal herein set out. This right shall continue and
exist as long as Declarant shall, at the request of any
owner, acknowledge in writing to any person having an
interest, that it has waived, or has been deemed to have
waived, the right and option herein reserved, if that be the
case.
ELK RIDGE
DECLARATION OF COVENANTS AND RESTRICTIONS
All of the terms and conditions of the aforesaid Declaration
of Covenants, Conditions and Restrictions shall remain in
full force and effect with the exception of Item 1. -
Residential Use and Item 2. - Size and Placement of
Residences and Structures, Part a., of ARTICLE VII.
ARTICLE VII
RESTRICTIONS AND REQUIREMENTS
1. Residential Use
No lot shall be occupied or used except for single-family
residential purposes, or as common areas if owned by the
Association. No structure shall be erected, placed or
permitted to remain on any lot other than two detached,
single-family residence dwellings and such outbuildings as
are usually accessory to a single-family residence dwelling
including a private garage or barn facility. One of the two
single-family dwellings may be used only as a part-time
residence and may never be used as a permanent or full-time
residence with a maximum allowed usage of 160 days per year.
One of the two single-family dwellings may be used as a
full-time residence. There can be only one part-time
residence and only one full-time residence on each lot. This
shall not restrict the Association or the Declarant from
constructing on any lot, security, maintenance, or other
facilities for the benefit of the Development. No obnoxious
or offensive activity shall be carried on upon the
properties which may be or may become a nuisance or
annoyance to the neighborhood.
2. Size and Placement of Residences and Structures.
a. No dwelling that is to be used as or is suitable for a
full-time residence having more than three (3) above ground
stories or having less than 1200 square feet (with some
consideration being given to covered non-heated areas) shall
be constructed upon any lot in the development except on the
secondary site of each lot in this development a part-time
residence may be constructed of less than 1200 square feet
when appropriately reviewed and approved. The Declarant and
its successor Architectural Review Committee, as provided in
Article VI, retain the right to withhold approval of plans
for any split level, two or three story residence where such
a structure is unsuited to the proposed lot's terrain, where
the erection of such a structure would block or materially
interfere with the primary view or vista or solar access of
another lot, or would not be in keeping with the general
development of surrounding area.
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