HomeMy WebLinkAboutSUB202000116 Correspondence 2021-04-20 (3)PREPARED BY AND UPON RECORDATION RETURN TO:
NICOLE M. SCRO (VSB#90239)
THE LAW OFFICE OF NICOLE M. SCRO, PLLC
912 EAST HIGH STREET
CHARLOTTESVILLE, VA 22902
COUNTY OF ALBEMARLE TAX MAP PARCEL 32A-2-2
DECLARATION OF COVENANTS, CONDITIONS,
RESTRICTIONS AND RESERVATION OF EASEMENTS
FOR
GLEN OAKS DEVELOPMENT
Declarant, ALBEMARLE LAND DEVELOPMENT, LLC a Virginia limited liability
company, is the owner of certain real estate located in the County of Albemarle, Virginia, more
particularly described in Exhibit A, attached hereto and incorporated herein (hereinafter referred
to as 'Property").
Declarant hereby declares that the Property shall be held, sold and conveyed subject to
the covenants, conditions, restrictions and reservation of easements herein and to the provisions
of Title 55.1, Chapter 18 of the Code of Virginia. This chapter is the Virginia Property Owners
Association Act and will be referred to as "the Act." This Declaration is for the purpose of
protecting the value and desirability of the Property and therefore such Declaration shall run with
the Property submitted hereunder or that which may subsequently be added, and shall be binding
on all parties having any right, title or interest in the Property, its successors and assigns, and
shall inure to the benefit of each owner thereof.
ARTICLE I
DEFINITIONS
1.1. Additional Land. "Additional Land" means the property described in Exhibit B which
may be made subject to this Declaration pursuant to Article XII.
1.2. Assessments. "Assessments" means those charges upon the Lots established by Article
VII of this Declaration.
1.3. Association. "Association" means Glen Oaks Homeowners Association, Inc., a Virginia
nonprofit corporation, its successors and assigns. Except as the context otherwise requires
"Association" shall mean the Board of Directors acting on behalf of the Association.
1.4. Board. 'Board" shall mean the Board of Directors or the executive board of the
Association.
1.5. Builder. 'Builder" means any person or entity (including the Declarant) who acquires a
Lot for the purpose of improving that Lot and erecting a Dwelling Unit thereon for resale to an
Owner.
1.6. Bylaws. `Bylaws" means the bylaws of the Association.
1.7. Common Elements. "Common Elements" shall mean any real estate owned or leased by
the Association other than a Lot, including easements in favor of the Association.
1.8. Common Expense Liability. "Common Expense Liability" means the liability for
Common Expenses allocated to each Lot pursuant to Article III of this Declaration.
1.9. Common Expenses. "Common Expenses" means expenditures made by, or financial
liabilities of, the Association, together with any allocations to reserves.
1.10. Declarant. "Declarant" means Albemarle Land Development, LLC, its successors and
assigns.
1.11. Declarant Control Period. "Declarant Control Period" means the period of time that the
Declarant may appoint members of the Board of Directors and the officers of the Association as
set forth in Article XIII.
1.12. Declaration. "Declaration" means this Declaration of Covenants, Conditions,
Restrictions and Reservation of Easements for Glen Oaks Homeowners Association, including
any amendments or supplements hereto.
1.13. Development Period. "Development Period" means the period commencing on the date
of recording of this Declaration and ending on the date five (5) years thereafter within which the
Declarant has the right to exercise the Development Rights set forth in Article XII, and subject to
the right of extension as outlined in Article XII.
1.14. Development Rights. "Development Rights" means those rights reserved by the
Declarant in Article XII.
1.15. Dwelling Unit. "Dwelling Unit" means an attached or detached building designed and
intended for use and occupancy as a single-family residence.
1.16. Lot. "Lot" means the physical portion of the Property designated for separate ownership
or occupancy, the boundaries of which are described pursuant to Article II.
1.17. Member. "Member" means any person or entity entitled to membership in the
Association as provided herein.
1.18. Occupant. "Occupant" means any person in possession of a Lot or Dwelling Unit
whether or not such possession is lawful and shall include but not be limited to, an Owner's
family members, guests, invitees, tenants and lessees.
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1.19. Owner. "Owner" means the Declarant or other person or entity who owns a Lot, but
does not include a person or entity having an interest in a Lot solely as security for an obligation.
1.20. Property. "Property" means the real estate described in Exhibit A attached hereto and
any other property, which may be made subject to the terms of this Declaration, together with
any improvements, made thereon.
1.21. Record Plan. "Record Plan" means the record plat for Glen Oaks Development,
recorded in the Clerk's Office of the Circuit Court of the County of Albemarle, Virginia in Deed
Book page and any subsequent plats or replats thereof.
1.22. Special Decarant Rights. "Special Declarant Rights" means those rights reserved by the
Declarant in Article XIII.
1.23. Supplemental Declaration. "Supplemental Declaration" shall mean an amendment or
supplement to this Declaration executed by or consented to by Declarant which subjects
Additional Property to this Declaration, and imposes, expressly or by reference, additional
restrictions and obligations on the land described therein, or designates property as Common
Elements.
1.24. Surface Water Management System. "Surface Water Management System" shall mean
the system designed for the Property by the Declarant for storm water, soil erosion and sediment
control. Such system shall include all existing watercourses, ditches, retention basins,
underground facilities and swales located on the Property.
ARTICLE II
LOTS AND BOUNDARIES
2.1. Types of Lot. There shall be one type of Lot within the Property, which shall be single-
family lots for the construction and occupation of attached single-family Dwelling Units.
2.2. Description of Lot Boundaries. The boundaries of the Lots shall be those as set forth
on the Record Plan. The Record Plan shows Phase 1, which includes Lots 1-7 and 31-59. The
development is intended to be subdivided further in Phase 2, with Lots 8-17 located in the area
adjacent to Halls Ridge Road and Lots 23-30 located in the area adjacent to Beech View Terrace,
and additional phases within the "Residue" as applicable. The Additional Land shall be
incorporated into this Declaration by a Supplemental Declaration.
ARTICLE III
ALLOCATED INTERESTS
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3.1. Common Expense Liability. Common Expense Liability shall be determined in
accordance with the allocation of various assessments as set forth in Article VII.
3.2. Votes in the Association. There shall be one vote allocated per Lot.
ARTICLE IV
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4.1. Description. The Common Elements shall be any portion of the Property owned by the
Association in fee or by easement or leased to the Association, including, but not limited to, the
following:
4.1.1. Open Space. The Record Plan designates several areas as "Open Space," which
such areas shall not contain any building except utilities, pursuant to applicable regulations of the
County of Albemarle, Virginia.
4.1.2. Street Trees. Street Trees will be planted along each public right-of-way.
4.1.3. Surface Water Management System. The regulations applicable to the Common
Element of the Surface Water Management System is set forth in Article V.
4.1.4. Recreational Facilities. Playground(s) and open mulched area(s) will be installed
in conformance with the recretational requirements of the County of Albemarle, Virginia.
4.1.5. Cluster of Mailboxes. Mailboxes for each Dwelling Unit will be installed in
clusters on concrete pads throughout the development.
Each of the Common Elements outlined above shall be maintained by the Association, as
set forth in the attached Exhibit C.
4.2. Easements. The Property shall be subject to certain easements. These easements shall
be appurtenant to and pass with the title to the Lots.
4.3. Enjoyment. The Common Elements shall be subject to an easement of enjoyment in
favor of the Lots and Owners. Such easement shall be limited to the purposes for which the
easements are created.
4.4. Access. The Common Elements shall be subject to permanent nonexclusive easements
for ingress and egress in favor of the Lots. Such easements shall be limited to the purposes for
which the easements were created. A non-exclusive easement is granted to the Owners of all
Lots, Occupants, their guests and invitees, and to all police, fire and other emergency personnel,
and to all similar persons, and to the local governmental authorities, but not to the public in
general, to enter upon the Common Elements, as shown on the Record Plan in the performance
of their duties.
4.5. Drainage. The Lots shall be subject to easements in favor of the Lots benefited for
Surface Water Management as further defined in Article V. No Owner shall do anything on or
within a Lot or Dwelling Unit that shall unreasonably increase the flow of surface water.
4.6. County of Albemarle, Virginia. A non-exclusive easement is granted to the County of
Albemarle, Virginia, and to all police, fire and other emergency personnel, ambulance operators,
delivery, garbage and trash removal personnel, and to all similar persons, and to the local
governmental authorities, but not to the public in general, to enter upon the Common Elements
and the Surface Water Management System in the performance of their duties.
4.7. Owner's Delegation Rights. Any Owner may delegate his or her easement rights and
rights of enjoyment to the Common Elements to any Occupants, and any guests, invitees, tenants
or lessees thereof. Any Owner who has leased his or her Lot shall be deemed to have delegated
such rights. Any such delegation, however, shall be in accordance with and subject to reasonable
rules, regulations and limitation as may be adopted by the Association in accordance with its
Bylaws.
4.8. Limitation on Common Elements and Easements. All Common Elements, easements
and rights granted herein are subject to:
4.8.1. Restrictions set forth in this Declaration and any Supplemental Declaration.
4.8.2. Any rules and regulations adopted by the Association and the right to enforce
such rules and regulations.
4.8.3. The right of the Association to levy assessments for the Common Expenses, and
other assessments as set forth herein.
4.8.4. The right of the Declarant and the Association to amend the Record Plan and to
grant further rights and easements within, upon, over, under, and across the Common Elements
for the benefit of the Owners, the Association or Declarant.
4.8.5. The Common Elements cannot be mortgaged or conveyed without the consent of
two-thirds of the Owners, excluding the Declarant. A conveyance or encumbrance of the
Common Elements shall not deprive any Lot or Dwelling Unit of its rights of access nor affect
the priority of validity of pre-existing encumbrances.
4.8.6. If access to any residence is through the Common Elements, any conveyance or
encumbrance of such area is subject to the Lot Owner's easement.
4.8.7. All rights granted to the Association in this Declaration.
XIII.
4.8.8. Development rights and Special Declarant Rights as set forth in Articles XII and
ARTICLE V
SURFACE WATER MANAGEMENT
5.1. Surface Water Management System. The Surface Water Management System shall
consist of the areas labeled as "SWM Forest/Open Space," "SWM Facility", "Public Drainage,"
or any other designation shown on the Record Plan related to stormwater management. The
Association shall maintain and administer the Surface Water Management System in accordance
with the guidelines as may be promulgated from time to time by the County of Albemarle,
Virginia.
5.2. Surface Water Management System Easements. Each Lot shall be subject to and
shall be benefited by an easement for storm sewers, drainage and surface water management as
more particularly shown on the Record Plan. Such easement shall be non-exclusive as to the
Owners and shall run to the Association, which has control and responsibility for drainage and
surface water management. Such easement, however, shall not run to the public at large, unless
explicitly stated in the Record Plan or other instruments related to such easements.
5.3. Access to Lots. For the purpose solely of performing the maintenance required or
authorized herein, the Association, through its duly authorized agents or employees, or
subcontractors, shall have the right, after reasonable notice to the Owners, to enter upon the Lots
at reasonable hours on any day.
5.4. Individual Maintenance. Each Owner shall maintain that portion of the Surface
Water Management System which serves only that Owner's Lot, including grass -cutting and
vegetation control within the drainage swales located on the Lot. Such responsibility shall
include keeping these easements clean and unobstructed. If the Association is providing grass
mowing under Article VIII, then the Association shall be responsible for the drainage swale
mowing. Maintenance of the Surface Water Management System shall be in accordance with
the guidelines and standards set forth by any governmental entity or any other agency having
authority.
5.5. Retention Basin and/or Underground Facility Maintenance. The Association shall
have primary responsibility for the maintenance of the retention basin and/or underground
facility, as applicable (the "Facility). The Association will conduct regular maintenance of the
Facility in accordance with the requirements of the County of Albemarle, Virginia.
5.6. Prohibition of Alterations. The Association is prohibited from altering the design of the
Facility without prior written approval from the County of Albemarle, Virginia Engineer.
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5.7. Restriction on Use. No Owner shall use or permit any other persons to use the Surface
Water Management System in any manner which would constitute a nuisance, hazard or
unsanitary condition or be in violation of any local, state, or federal law ordinance, rule,
regulation or statute. No use of the retention basin including, without limitation, fishing,
swimming, boating, playing, or use of personal flotation devices, shall be permitted. The
Association shall not be responsible for any loss, damage, or injury to any person or property
arising out of the authorized or unauthorized use of the retention basin.
ARTICLE VI
OWNERS ASSOCIATION
6.1. Formation. The Declarant has caused or will cause to be chartered a non -stock
corporation named Glen Oaks Homeowners Association, Inc. The purposes for the Association
are to provide for the administrative governance, maintenance and upkeep of the Property and to
promote the health, safety, and welfare of the Owners and Occupants of the Property.
6.2. Membership. The membership of the Association shall at all times consist exclusively
of Owners of the Lots, and the Declarant (as applicable). All such Owners shall be members.
Membership shall be appurtenant to and may not be separated from such ownership, with the
exception of the Declarant or the Declarant's successors or assigns.
6.3. Powers of the Association. Subject to Special Declarant Rights hereinafter set forth, the
Association may:
6.3.1. adopt and amend Bylaws for the government of the Association, the conduct of its
affairs and the management of the Property;
6.3.2. adopt rules and regulations for the use and occupation of the Common Elements
and to enforce violations of the rules and regulation and the provisions and restrictions of the
Declaration as against the Owners and Occupants.
6.3.3. adopt and amend budgets for revenues, expenditures and reserves and levy and
collect Assessments from Owners;
6.3.4. hire and discharge managing agents and other employees, agents and independent
contractors;
6.3.5. institute, defend or intervene in litigation or administrative proceedings in its own
name on behalf of itself or two or more Owners on matters affecting the community;
6.3.6. make contracts and incur liabilities;
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6.3.7. regulate the use, maintenance, repair, replacement and modification of the
Common Elements for which the Association has maintenance responsibility and other rights as
set forth herein;
6.3.8. cause additional improvements to be made as part of the Common Elements;
6.3.9. acquire, hold, encumber and convey in its own name any right, title or interest to
real estate or personal property;
6.3.10. grant easements, liens, licenses and concessions through or over the
Common Elements;
6.3.11. impose and receive any payments, fees or charges for the use, rental or
operation of the Common Elements and for services provided to Owners;
6.3.12. impose charges for late payments of Assessments and after notice and an
opportunity to be heard, levy reasonable fines for violations of the Declarations, the Bylaws, and
any rules and regulations of the Association;
6.3.13. impose reasonable charges for the preparation and recordation of
amendments to the Declaration or for statements of unpaid Assessments;
6.3.14. provide for indemnification of its officers and board of Directors and
maintain directors' and officers' liability insurance;
6.3.15. assign its right to future income, including the right to receive Common
Expense Assessments, except that this power shall be limited to the purposes of repair of existing
structures or improvements;
6.3.16. exercise any other powers conferred by the Declaration, Bylaws or
Articles of Incorporation;
6.3.17. exercise all other powers that may be exercised in this state by nonprofit
corporations;
6.3.18. exercise any other powers necessary and proper for the governance and
operation of the Association.
6.4. Voting Rights. Subject to Special Declarant Rights as set forth in Article XIII, Owners
shall be entitled to vote on matters properly before them in accordance with this Article, the
Bylaws and the laws of the Commonwealth of Virginia.
6.5. Number of Votes. Each Lot shall have one vote. If only one of several Owners for a
Lot is present at a meeting of the Association, that Owner is entitled to cast the vote allocated to
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that Lot. If more than one of the Owners is present, the vote allocated to that Lot may be cast
only in accordance with the agreement of a majority in interest of the Owners. There is majority
agreement if any one of the Owners casts the vote allocated to that Lot without protest being
made promptly to the person presiding over the meeting by any of the other Owners of the Lot.
The Association may adopt rules regarding deadlocks. No votes allocated to any Lots owned by
the Association may be cast.
6.6. Proxies. A vote allocated to a Lot may be cast pursuant to a proxy duly executed by an
Owner. If a Lot is owned by more than one person, each Owner of the Lot may vote or register
protest to the casting of votes by the Owners of a Lot through a duly executed proxy. An Owner
may revoke a proxy given pursuant to this section only by actual notice of revocation to the
person presiding over a meeting of the Association. A proxy is void if it is not dated or purports
to be revocable without notice. Except as hereinafter provided, a proxy shall terminate one year
after its date, unless it specifies a shorter time. If a first mortgagee has been designated a proxy
under the terms of a first mortgage covering the Lot, its presentation to the Board of a copy of
the mortgage shall be notice of the proxy designation, and if the mortgage so states, of the
irrevocability of that designation. Written notice to the Board or notice in a meeting of a
revocation of a proxy designation shall not affect any vote or act previously taken. Each proxy
shall automatically cease upon conveyance of the Lot. Unless expressly reserved and the
Association is notified of such reservation, a land contract vendee shall be deemed the proxy of a
land contract vendor for purposes of this section.
6.7. Annual Meeting. A meeting of the Members of the Association must be held at least
once each year.
6.8. Management Agent. The Declarant, or an affiliate of the Declarant, if the Declarant so
elects, shall be employed as the managing agent or manager. If Declarant, or an affiliate of the
Declarant, does not elect to be employed as the managing agent or manager, only then shall the
Board have the option to employ for the Association a different professional management agent
or agents. The managing agent or manager compensation shall be established by the Board, and
the managing agent or manager shall perform such duties and services as the Board shall
authorize. Notwithstanding the foregoing, if the Declarant, or an affiliate, chooses to act as the
managing agent or manager, then the Declarant, or such affiliate, shall set its compensation and
performance of duties and services; provided, however, that such compensation and scope of
employment shall be determine by what is reasonable and customary in the industry, and in
consideration of the particular needs of the Association and community generally.
ARTICLE VII
ASSESSMENTS
7.1. Establishment of Assessments. There are hereby established for the benefit of the
Association, its successors and assigns, as a charge on each Lot, certain Assessments for
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Common Expenses and other expenses. Each Owner, by acceptance of a deed, covenants and
agrees to pay such Assessments.
7.2. Purpose of the Assessments. The Assessments are established for the benefit and use of
the Association and shall be used in covering the costs of its Common Expenses and for other
such purposes as hereinafter set forth.
7.3. Annual General Assessment. There is hereby established an Annual General
Assessment levied against all Lots for the purpose of the Common Expenses of the Association.
The Common Expenses shall be, but not limited to, (1) operation, maintenance, repair and
replacement as required by this Declaration; (2) the cost of any insurance required by this
Declaration; (3) reasonable reserves for contingencies and replacement; (4) administrative,
accounting, legal and management fees; and (5) all other costs and liabilities incurred by the
Association in the exercise of its powers and duties pursuant to this Declaration.
7.4. Individual Assessment. The Association, after approval by majority vote of members of
the Board, shall have the right to assess an individual Lot for any of the following:
7.4.1. any costs incurred by the Association in the performance of any maintenance in
accordance with Article VIII, Section 8.2.
7.4.2. any charges or fines imposed or levied in accordance with Article IX, Section
9.3.1.1.
7.4.3. any costs incurred for maintenance or repair caused through the willful or
negligent act of an Owner or Occupant or their family, tenants, guests or invitees, including
attorney fees, court costs and other expenses incurred.
7.4.4. any costs associated with the enforcement of this Declaration (including
restictions and easements) or the Rules and Regulations of the Association, including, but not
limited to attorneys fees, witness fees and costs, and court costs.
7.4.5. any costs or charges permitted by this Declaration, any Supplemental
Declarations, amendments, or the Bylaws to be charged or assessed as an Individual Assessment.
7.5. Working Capital Fund; Initial Assessment. At the time of closing of a Lot from the
Declarant or any Builder, the new Owner of such Lot shall be assessed the sum of $300.00 for
each Dwelling Unit to be constructed as initial capital contribution to the working capital fund of
the Association. These Assessments shall be used by the Association for its operating expenses.
Such Assessment is not an advance payment of the Annual General Assessment, and it will not
be held in any sort of trust or reserve account. Any Builder or Builders shall be exempt from the
foregoing initial assessment. However, for any Lot or Lots owned by any Builder or Builders
that are not maintained, and remains in need of maintenance for a period of thirty (30) days from
notice thereof, shall be charged an assessment to perform said maintenance.
7.6. Special Assessment. There may be established a Special Assessment for the purpose of
repairing or restoring damage or destruction to the Common Elements, or any other such
exepnses, as further set forth herein. Any Builder or Builders shall be exempt from any
foregoing special assessment.
7.7. Computation and Payment of Annual General Assessment. The Annual General
Assessment shall be computed and levied in accordance with the budget adopted by the Board
pursuant to the Bylaws. This Assessment shall be effective as to each Lot on the first day of the
Association's fiscal year. The initial Annual General Assessment as to each Lot shall commence
on the first day of the month following the earlier of (i) its conveyance to an Owner other than a
Builder; (ii) one -hundred, eighty (180) days has passed from the conveyance of such Lot to a
Builder; or (iii) occupation of the Dwelling Unit. The initial Annual General Assessment shall
be prorated on a monthly basis to the end of the Association's fiscal year, and shall be collected
at closing of the conveyance of the Lot from the Builder, or at the two (2) year anniversary of the
conveyance of the Lot from the Declarant to the Builder, as applicable. So long as there has
been no default in payment of the Assessment, it shall be payable in annual installments due on
the first day of each fiscal year. The Board shall have the power from time to time to adopt such
billing, collection and payment procedures, charges and other payment time schedules, as it
deems appropriate.
7.8. Maximum Annual Assessment. Beginning with the recording of this Declaration and
until December 31, 2021, the maximum Annual General Assessment shall be $900.00.
Beginning with Assessments levied as of January 1, 2022, and annually thereafter, the Board,
without a vote of the Owners, may increase or decrease the Annual General Assessment. If the
Board increases the Annual General Assessment, then, within thirty (30) days of notice of such
increase, Members in good standing exercising ten (10%) percent of the voting power of the
Association, may petition the Board for a special meeting of the Association to reconsider such
increase. At such meeting, the Members in good standing, in person or by proxy, exercising
sixty-six and two thirds (66 2/3%) percent of voting power of the Association, may vote to
reduce the increase by any amount therein proposed, but not lower than the previous years
maximum amount.
7.9. Allocation of Assessments. The Common Expense Liability of each Lot shall be its
portion of the Common Expense. The Common Expense Liability and the Annual General
Assessment shall be allocated equally to each Lot. The other Assessments shall be allocated as
applicable to the respective Lots and as determined by the Board.
7.10. Lien for Assessments. The Association shall have a lien for any Assessment levied
against a Lot, for fines imposed against an Owner or Occupant, and for interest, costs and
reasonable attorney fees.
7.10.1. Creation. The lien for Assessments is created by this Declaration and
shall be a charge and a continuing lien on each Lot, which shall run with the land. All persons or
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entities acquiring an interest in a Lot after the filing of this Declaration take such interest subject
to the lien.
7.10.2. Effective Dates. The lien for the Common Expense Liability for each Lot
as set forth in the Annual General Assessment shall be effective on the first day of the fiscal year
of the Association. The lien for other Assessments shall be effective on the first day of the
month following the notice of its levy on the Owners affected.
7.10.3. Perfection. Recording of this Declaration constitutes notice and perfection
of the Lien.
7.10.4. Notice of Lien. The Association shall file a notice of lien with the land
records of the County of Albemarle, Virginia and in accordance with the requirement of the Act.
7.10.5. Priority of the Lien. The lien created by this Section shall be prior to all
liens and encumbrances recorded subsequent to this Declaration except the lien for real estate
taxes and assessments and the lien of any bona fide first mortgage filed of record.
7.10.6. Subordination and Mortgagee Protection. Notwithstanding any of the
provisions hereof to the contrary, the lien of any Assessment levied pursuant to this Declaration
(and any late charges, interest, costs and attorney fees) shall be subordinate to, and shall in no
way affect the rights of the holder of a first mortgage made in good faith for value received;
provided, however, that such subordination shall apply only to Assessments, or installments
thereof, which have become due and payable prior to the date of sale of such Lot pursuant to a
foreclosure or the date of a deed in lieu of foreclosure. Such sale or transfer shall not relieve the
mortgagee or the purchaser of a Lot at such sale from liability for any Assessments thereafter
becoming due, nor from the lien of any such subsequent Assessment. Mortgagees are not
required to collect Assessments on behalf of the Association. Failure to pay Assessments shall
not constitute a default under any mortgage insured by FHA/VA.
7.10.7. Extinguishment of the Lien. A lien for unpaid Assessments is
extinguished unless proceedings to enforce it are instituted within five (5) years after the full
amount of the Assessment becomes due. If an Owner of a Lot subject to a lien files a petition for
relief under the United States Bankruptcy Code, then the period of time to enforce the
Association's lien shall be tolled until thirty (30) days after the automatic stay under Section 362
of the Bankruptcy Code is lifted.
7.10.8. Estoppel Certificate. Upon request of any mortgagee or Owner and upon
payment in full of all Assessments and other charges permitted by this Declaration that are due to
the Association, the Association shall execute and deliver to such mortgagee or Owner an
Estoppel Certificate. Such certificate shall be in recordable form and shall note the payment of
the outstanding Assessments and charges and that the Association is estopped from the
enforcement of its lien with respect to Assessment and charges becoming due and payable prior
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to the date of the Certificate. The Association may charge a reasonable fee for the preparation of
such certificate.
7.11. Delinquency and Acceleration. Any installment of an Assessment provided for by this
Declaration shall become delinquent if not paid on the due date as established by this Declaration
or by the Board. With respect to each installment of an Assessment not paid within five (5) days
of its due date, the Board may, at its election, require the Owner to pay a reasonable late charge,
costs of collection, reasonable attorney fees and interest. Interest shall be calculated from the
date of delinquency to the date full payment is received by the Association. If any installment of
an Assessment is not paid within thirty (30) days of its due date, the Board may, at its election,
declare all of the unpaid balance of the Assessment immediately due and payable without further
notice or demand to the Owner. The Association may enforce the collection of the full
Assessment and all charges thereon in any manner authorized by law or this Declaration. The
filing of any petition for relief pursuant to the United States Bankruptcy Code by an Owner
whose Assessment has been accelerated shall operate as a restoration of the Assessment to its
prior status as if it has not been accelerated.
7.12. Remedies Cumulative. A suit to recover money judgment for unpaid Assessments and
charges may be maintained without foreclosing or waiving the right to enforce the lien. A
foreclosure may be maintained notwithstanding the pendency of any suit to recover a money
judgment.
7.13. Personal Obligation. The Assessments, including fines, if any, payable by each Owner,
together with any penalty, interest, costs and reasonable attorney fees shall be the personal
obligation of the Owner of the Lot at the time incurred. The personal obligation shall not pass to
any successors in title unless expressly assumed by them.
7.14. Statement of Unpaid Assessments. The Association shall upon written request of the
Owner, contract purchaser, or first mortgagee, furnish a statement setting forth the amount of
unpaid Assessments against the Lot. This statement must be furnished within ten (10) business
days after receipt of the request and is binding on the Association, the Board and every Owner.
The Association may charge a reasonable amount for this statement.
7.15. No Waiver of Liability for Common Expenses. No Owner may exempt himself or
herself from liability for payment of the Common Expenses by waiver of the use or enjoyment of
the Common Elements or by abandonment of the Lot against which the Assessments are made.
ARTICLE VIII
UPKEEP OF THE PROPERTY
5.1. Lots. Each and every Lot, its Dwelling Unit and any improvement erected thereon shall
be maintained by the Owner in a reasonable manner in accordance with the standard generally
prevailing throughout the Property. The Association shall provide mowing and other lawncare
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maintenance services related only to care of the grass on the side, rear and front yards of each
Lot. For the avoidance of doubt, the foregoing maintenance responsibilities of the Association
does not include maintenance of vegetation other than the grass within each Lot's side, rear and
front yards.
8.2. Common Elements. The Association shall maintain the Common Elements.
8.3. Association's Easement for Maintenance. The Association is hereby granted an
easement over the Lots and the Common Elements for the purpose of providing the maintence
required by this Declaration, which shall specifically include the requirements outlined in Article
IX, Section 9.1.10.
8.4. Association's Right to Maintain. In the event that an Owner shall fail to provide
maintenance as required by this Declaration in a manner satisfactory to the Association, and such
Owner has failed to comply for ten (10) days after being so notified of such failure and upon
being provided an opportunity to be heard concerning such failure, then the Association shall
have the right, through its agents and employees, to enter upon said Lot and repair, maintain and
restore the Lot. In the event that such failure poses a health, safety or security risk, then no
notice or hearing need be given. The cost of such maintenance and repair shall be assessed
against the subject Lot in accordance with Article VII, Section 7.4.
8.5. Access to Lots. For the purpose solely of performing the maintenance required or
authorized herein, the Association through its duly authorized agents or employees, or
subcontractors, shall have the right, after reasonable notice to the Owner, to enter upon any Lot
at reasonable hours on any day.
ARTICLE IX
RESTRICTIONS
9.1. Use and Occupancy. The following restrictions are applicable to all Lots with respect to
the use and occupancy of the Property. Other restrictions may be set forth in a Supplemental
Declaration.
9.1.1. Compliance with Laws. No unlawful use shall be made of the Property or any
part thereof, and all valid laws, zoning ordinances and regulations of all governmental agencies
having jurisdiction thereof shall be observed. All laws, orders, rules, regulations or requirements
of any governmental agency having jurisdiction thereof relating to any portion of the Property
shall be complied with, by and at the sole expense of the Owner.
9.1.2. Harmful Discharges. There shall be no emissions of dust, sweepings, dirt,
cinders, odors, gases or other substances into the atmosphere (other than normal residential
chimney emissions), no production, storage or discharge of hazardous wastes on the Property or
discharges of liquid, solid wastes or other harmful matter into the ground or any body of water, if
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such emission, production, storage or discharge may adversely effect the use or intended use of
any portion of the Property or may adversely effect the health, safety or comfort of any person.
No waste nor any substance or materials of any kind shall be discharged into any public sewer or
the Surface Water Management System serving the Property or any part thereof in violation of
any regulation of any public body having jurisdiction over such public sewer, or Surface Water
Management System.
9.1.3. Noise. No person shall cause any unreasonably loud noise (except for security
devices) anywhere on the Property, nor shall any person permit or engage in any activity,
practice or behavior for the purpose of causing annoyance, discomfort or disturbance to any
person lawfully present on any portion of the Property.
9.1.4. Signs. No signs of any character shall be erected, posted or displayed upon the
Property, except: (i) marketing signs installed by the Declarant while actively marketing the Lots
for sale; (ii) street and identification signs installed by the Association or the Declarant; and (iii)
one temporary real estate sign not to exceed six square feet in area advertising that such Lot is on
the market.
9.1.5. No Trade or Business. No trade or business of any kind may be conducted within
any Lot or Dwelling Unit except that an Owner or Occupant may conduct such business activity
so long as: (a) the existence or operation of the business activity is not apparent or detectable by
offensive sight, sound or smell from the exterior of the Lot or Dwelling Unit; (b) the business
activity conforms to all zoning requirements for the Property; (c) the business activity does not
involve a substantial number of persons coming on to the Lot who do not reside in the Property;
and (d) the business activity is consistent with the residential character of the Property.
The terms "business" and "trade" as used in this provision shall be construed to have their
ordinary generally accepted meanings and shall include, without limitation, any occupation,
work or activity undertaken on an ongoing basis which involves the provision of goods or
services to persons other than the provider's family and for which the provider receives a fee,
compensation or other form of consideration, regardless of whether (i) such activity is engaged
in full-time or part-time; (ii) such activity is intended to or does generate a profit; or (iii) a
license is required thereof. The term "trade" or "business" for purposes of this restriction shall
not include the construction, operation and maintenance of any model home or homes and sales
offices by any Builder during reasonable hours.
9.1.6. Trash. Except in connection with construction activities, no burning of any trash
and no accumulation or storage of litter, refuse, bulk materials, building materials or trash of any
other kind shall be permitted on any Lot. Trash containers (except during construction) shall not
be permitted to remain in public view except on days of trash collection. No incinerator shall be
kept or maintained upon any Lot. Notwithstanding the foregoing, Lots 23-30 shall be allowed to
have trash containers within public view so long as said containers are at least reasonably
screened from view. Said screening can include, but is not limited to, an enclosure, fencing,
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and/or vegetation. Lots 1-7, with backyards that abut Proffit Road, shall specifically not be
allowed to store such containers within said backyards.
9.1.7. Parking; Vehicle Repairs. Except in connection with construction activities,
trucks, trailers, campers, recreational vehicles, boats and other large vehicles may be parked on
the Property only if in garages. No junk or derelict vehicle or other vehicle on which current
registration plates are not displayed shall be kept upon any portion of the Property. Vehicle
repairs and storage of vehicles are permitted on the Property only if in garages. Recreational
vehicles and boats may be parked in the driveways for a period not to exceed seventy-two (72)
hours for the purpose of cleaning, loading or unloading. It is the intent of this restriction to limit
parking in the driveways to personal non-commercial vehicles, and smaller vehicles so as not to
obstruct the public and other residents access to the sidewalk through and across the driveways
of Dwelling Units. Each Owner and Occupant shall adhere to the foregoing as is reasonably
practicable, which shall be determined by the sole discretion of the Board.
ON -STREET PARKING IS RESERVED FOR TEMPORARY OR GUEST
PARKING ONLY. NOTHWITHSTANDING ANYTHING HEREIN TO THE CONTRARY,
NO VEHICLE SHALL BE ALLOWED TO REMAIN PARKED IN AN ON -STREET
PARKING SPACE FOR A PERIOD EXCEEDING SEVENTY-TWO (72) HOURS. NO
OWNER, LESSEE, OR OTHER RESIDENT OF ANY LOT SHALL PARK ANY VEHICLE
IN THE ON -STREET PARKING SPACES.
The above seventy-two (72) hour period shall be considered continuous even if the
applicable vehicle is moved from one on -street parking spot to a different on -street parking spot,
and if the vehicle is removed from any such on -street parking spot or spots for only a non -
substantive time period.
Notwithstanding anything herein to the contrary, the Board shall have the power to tow
such vehicles illegally parked in the on -street parking area (or any other area within the Property)
at the expense of the vehicle owner, and/or levy a monetary fine of ONE HUNDRED AND
FIFTY DOLLARS ($150.00) against such vehicle owner or an applicable Owner, if such vehicle
owner is an Occupant, guest, invitee, or is otherwise related to an Owner.
9.1.8. Animals. The maintenance, keeping, boarding or raising of animals, livestock,
poultry or reptiles of any kind, regardless of number, is prohibited on any Lot. The keeping of
guide animals and domestic pets (e.g., dogs, cats or caged birds) is permitted. No pets shall be
kept or maintained for commercial purposes or for breeding. No external compound cages,
kennels or hutches shall be permitted. In addition, no animals shall be left outside without an
Owner or Occupant, guest or invitee, present.
Pets shall not be permitted on the Common Elements unless accompanied by someone
who can control the pet and unless carried or leashed. Any Owner or Occupant who keeps or
maintains any pet on any portion of the Property shall be deemed to have indemnified and agreed
IN
to hold the Association harmless from any loss, claim or liability of any kind or character
whatever arising by reason of keeping or maintaining such pet within the Property.
9.1.9. Outdoor Fires. No outside burning of wood, leaves, trash, garbage or other refuse
shall be permitted on any Lot, except that an outdoor fireplace or permanent outdoor firepit may
be approved by written approval from the Architecture Review Committee as further described
herein.
9.1.10. Fences. While fences shall be allowed, if a fence is erected in the rear
yard of any Lot, in order to maintain access for lawncare between Lots, either (i) a clear pathway
of at least ten (10) feet in width shall be provided outside of such fence that shall allow for clear
access from one rear yard to the adjacent rear yard, or (ii) two unlocked gates or other openings
shall be installed on either side of the fence that shall allow clear access from one rear yard to the
adjacent rear yard.
9.1.11. Pools and Spas. No above or below ground swimming pools shall be
permitted, except small "kiddie" pools.
9.2. Architectural Restrictions. The following architectural restrictions shall be applicable
to all Lots.
9.2.1. Plan Approval. No structure shall be placed, erected or installed upon any Lot, no
construction (which term shall include within its definition staking, clearing, excavation,
grading, and other site work), no substantial exterior alteration or modification of existing
improvements shall take place until the requirements of this section have been fully met. The
foregoing shall specifically include the erection of any fence. Prior to any construction, the
Owner or Builder shall first submit to the Declarant (which for the terms of this section shall
include its designee) or the Association, as applicable, in duplicate, plans and drawings, in a one -
eighth (1/8) scale or larger, which shall contain, at a minimum, the following. Such minimum
standards shall only be required as applicable given the particular proposed improvement(s):
(a) front, rear and side elevations;
(b) floor plans showing major dimensions and openings;
(c) exterior building material to include color and type of material (vinyl,
aluminum, cedar, etc.);
(d) exterior trim color;
(e) roofing material and color;
(f) other materials necessary to illustrate the character of the proposed
construction;
(g) a statement of the estimated completion dates of all construction and
improvements; and
(h) other standards set forth within this Declaration (and any amendments
hereto) or as may be published by the Architecture Review Committee.
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These requirements also pertain to any substantial alterations and/or additions the
Declarant or the Association, as applicable, shall approve, reject or modify such plans in a
writing sent to the Owner or Builder in question not more than thirty (30) days after the plans are
submitted to the Declarant or the Association, as applicable, by certified mail, or there is
otherwise written confirmation of receipt. The Declarant or Association, as applicable, shall
review the plans as to the quality of workmanship and design and harmony of external structures
with existing structures and as to location in relation to surrounding structures, topography and
finish grade elevation. The Declarant, or Association, as applicable shall not unreasonably
withhold approval of any plans that conform in every way with the Declaration and with the
general character of the development on neighboring Lots within the Property. If the Declarant
or Association, as applicable, fails to approve, reject, or modify the plans within the thirty (30)
day period, the Declarant's or Association's, as applicable, approval shall be deemed to have
been given, and no further permission shall be needed before the improvements described in
such plans may be constructed or installed. However, in no event shall any improvements be
constructed or installed that violate any terms of this Declaration.
The Architectural Review Committee or its designated representative shall have the right
to inspect any improvements during construction to determine compliance with the approved
plans and specifications. Where discrepancies exist, the Architectural Review Committee may
require corrective work, or, where warranted, in its opinion, it may issue a notice to cease
construction until compliance is assured to its satisfaction. Failure to heed notice of the
Architectural Review Committee shall be a violation of these covenants and considered a default
under this Declaration, authorizing the Association to act on the powers set forth in Article IX,
Section 9.3.
9.2.2. Design Guidelines. The Declarant shall prepare and, on behalf of itself and the
Association, shall promulgate design and development guidelines governing construction, which
shall include application and review procedures to be followed in submitting an application for
approval hereunder ("Design Guidelines"). The Design Guidelines shall be those of the
Association, and the Declarant and/or the Association shall have sole and full authority to
modify and to amend them from time to time without the consent of any Owner. The Declarant
and/or the Association shall make the Design Guidelines available to Builders and Owners who
seek to engage in construction upon all or any portion of the Property.
9.2.3. Declarant's Plan Approval Period. The Declarant shall have the sole right of plan
approval for as long as Declarant owns any Lot in the Property. Declarant's right of plan
approval shall include any substantial alterations to existing Lots or Dwelling Units and/or items
requiring prior approval by this Declaration. In any items or matters that are discretionary, the
Declarant's decision shall be conclusive upon all parties.
9.2.4. Declarant's Control of New Construction. The Declarant shall have exclusive
control of initial new construction within the Property. No provision of this Declaration or the
Design Guidelines, as the same relates to initial new construction, may be modified without
Declarant's consent.
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9.2.5. Association's Right of Plan Approval. After Declarant's right of plan approval
has expired, the Association shall be responsible for plan approval. The Declarant may assign its
right of plan approval or any portion thereof to the Association. The Association may delegate
such right of plan approval to an Architectural Review Committee.
9.2.6. Design Review by the County of Albemarle, Virginia. In addition to review by
the Declarant or the Association, pursuant to the County of Albemarle, Virginia Development
Regulations, and as the same may from time to time be amended, and as such regulations are
applicable, site improvements such as fences, decks, patios, sidewalks, landscape islands,
planting beds and similar items shall be reviewed by the Chief Building Official and approved
only after a determination has been made that the following standards and any future standards
as may be from time to time adopted by the County of Albemarle, Virginia, will be met.
9.2.6.1. The proposed improvement will not result in a change of grade that would
materially affect storm water drainage patterns or result in an increase in storm water
discharges to a neighboring property.
9.2.6.2. Proposed improvements will not be situated so as to place outdoor use in
close proximity to a neighboring property's noise sensitive rooms such as bedrooms.
9.2.6.3. Where above -ground improvements include modification of existing
ground by excavation or fill, the applicant shall provide a site plan indicating the
existing and proposed elevations, location of the improvement, and distances of the
proposed modifications to adjoining property lines.
9.2.7. No Liability. Each Owner and Builder is responsible to insure that all
construction or any modifications, are in compliance with the Design Guidelines, restrictions and
approved plans. If the Declarant or the Directors have acted in good faith on the basis of such
information possessed by them, neither the Developer, the Board nor any Director shall be liable
to the Association or to any Owner for any damage, loss or prejudice suffered or claimed due to:
(a) the approval or disapproval of any plans, drawings and specifications, whether or not
defective; or (b) the construction or performance of any work whether or not pursuant to
approved plans, drawings, and specifications.
9.2.8. Dwelling Type. No building shall be erected, altered, placed or be permitted to
remain on any Lot other than a single-family dwelling unit.
9.2.9. Set Back, Minimum Elevation and Yard Requirements. All Dwelling Units shall
be located in accordance with the building set back lines, minimum basement elevation and yard
requirements as shown on the Record Plan and as set forth in the County of Albemarle, Virginia
Zoning Ordinance. Any such building shall face toward the front line of the Lot except that
buildings to be constructed on comer Lots shall face in the direction designated by the Design
M
Review Committee. The Owner or Builder shall be responsible for compliance with these
standards. Declarant shall not be responsible for any failure to comply with these standards.
9.2.10. Front Yards and Driveways. Front yards shall be landscaped as soon after
completion of the Dwelling Unit as is practical.
9.2.11. Front Storage. No front porch shall be used for the storage of any items
except normal porch furniture, as is reasonable and practicable. No front yard shall be used for
storage of any kind of items, as the same may be reasonable and practicable. The foregoing
standard for reasonable and practicable shall be determined by the sole discretion of the Board.
This restriction shall not apply to building materials and/or equipment stored on the Lot during
construction of the Dwelling Unit.
9.2.12. Radio and Television Antennas. No exterior antennas, aerials, satellite
dishes, or other apparatus for the reception or transmission of television, radio, satellite or other
signals of any kind shall be placed, allowed, or maintained upon any portion of the Properties,
including any Dwelling Unit, without the prior written approval as provided in Section 9.2.1, and
in accordance with the Design Guidelines established by the Declarant or the Association.
Nothing herein shall be construed so as to be in conflict with current Federal Communications
Commission's rules and regulations for antennas.
9.2.13. Air Conditioning and Heat Pump Equipment. Air-conditioning and
heating equipment should be located on the side or the rear of the Lot.
9.2.14. Chimneys. All chimneys with metal flues must be enclosed within a chase
that may be sided, as applicable. Any direct vent chimney and / or furnace flues, hotwater heater
or any other flues shall be vented only to the rear or side of the Dwelling Unit, as applicable.
9.2.15. Completion. Construction of a Dwelling Unit on any Lot shall be
completed within one (1) year from the date construction is started.
9.2.16. Lot Maintenance. It shall be the responsibility of each Owner of a Lot to
prevent the accumulation of litter, trash, packing crates, or any other accumulations which shall
create an unkempt condition of the buildings or grounds on a Lot and/or which shall otherwise
tend to substantially decrease the beauty of the Property as a whole or the specific area. No loose
trash will be permitted to be strewn about the Property at any time. Garbage containers must be
kept out of sight from the street, except during garbage collection hours. Notwithstanding the
foregoing, Lots 23-30 shall be allowed to have trash containers within public view so long as
said containers are at least reasonably screened from view. Said screening can include, but is not
limited to, an enclosure, fencing, and/or vegetation. Lots 1-7, with backyards that abut Proffit
Road, shall specifically not be allowed to store such containers within said backyards. All
personal use items shall be stored inside when not in use, as the same may be reasonable and
practicable as determined by the sole discretion of the Board. During construction, each Owner
and Builder shall be responsible for keeping the streets and adjacent Lots clean and free of
go]
debris. The Declarant shall have the right to assess any Owner or Builder for the cost of clean up
in the event that the Owner or Builder fails to do so. Owners shall be responsible for all costs
incurred to repair or replace aprons, sidewalks, damaged curbs and/or gutters along the front of
the Owner's or Builder's Lot resulting from construction vehicles or any negligence during the
construction of the Dwelling Unit. Lot Maintenance shall also specifically require each Owner
of a Lot to maintain any fencing and vegetation on their Lot to the same standard as outlined
above.
9.2.16. L Lot Maintenance Default. In the event the Owner of any Lot fails to
maintain a Lot and improvements, including, without limitation, vegetation and
fencing, in a satisfactory manner, the Architectural Review Committee shall have the
right, through its agents, if approved by majority of the Architectural Review
Committee members, to enter onto the Lot and repair, maintain, and restore the Lot
and the exterior of the buildings and any other improvements as provided above, and
its costs in so doing shall be a special assessment against that Lot, secured by an
assessment lien against the Lot as well as mechanics' lien rights as provided by law,
for which purpose the Architectural Review Committee shall be deemed a general
contractor of the delinquent Owner.
9.3. Remedies for Breach of Covenants and Restrictions. The violation of any covenant,
easement or restriction contained in the Declaration or violation of any rule or regulation duly
adopted by the Board shall give the Board the authority to enforce the covenants, restrictions,
rules and regulations in accordance with this Section.
9.3.1. Actions. The Board may take any or all of the following actions:
9.3.1.1. levy a fine against the Builder, Owner or Occupant, which shall also be an
Individual Assessment under Section 7.4.
9.3.1.2. enter upon a Lot or portion thereof upon which or, as to which, such
violation or breach exists and to summarily abate and remove at the expense of the
Owner, any structure, thing or condition that may exist thereon contrary to the intent
and meaning of the provisions of this Declaration, and the Board, or its agents shall
not be thereby deemed guilty in any manner of trespass or wrongful act.
9.3.1.3. institute appropriate legal proceedings to enjoin, abate or remedy the
continuance of any breach.
9.3.1.4. undertake such dispute resolution methods such as mediation and
arbitration, except that this provision shall not be construed as any requirement to do
so as a condition precedent to legal proceedings.
9.3.2. Notice and Opportunity to be Heard. Prior to any action, the Board shall give the
Builder, Owner and/or Occupant reasonable notice of the violation and an opportunity to be
21
heard in accordance with the notice provisions set forth in Article VII and the Bylaws. Such
notice and opportunity shall not be required in emergency situations or for repeated or continuing
violations.
9.3.3. Individual Actions. Each Owner is empowered to enforce the covenants by
appropriate legal proceedings or alternative dispute resolution methods.
ARTICLE X
INSURANCE AND CASUALTY LOSSES
10.1. Casualty Insurance. The Association's Board of Directors, or its duly authorized agent
shall have the authority to obtain and shall obtain blanket "all-risk" property insurance, if
reasonably available, for all insurable improvements on the Common Elements and such other
property as the Association is obligated to maintain and insure. If blanket "all-risk" coverage is
not reasonably available, then at a minimum, an insurance policy providing fire and extended
coverage shall be obtained. The face amount of such insurance shall be sufficient to cover the
full replacement cost of any repair or reconstruction in the event of damage or destruction from
any insured hazard.
10.2. Liability Insurance. The Board shall also obtain a public liability policy covering the
Common Elements, insuring the Association and its Members for all damage or injury caused by
the negligence of the Association, any of its Members, employees or agents, or any other person
who has a right to occupy a Dwelling Unit. The public liability policy shall have at least a One
Million ($1,000,000.00) Dollar single person limit as respects bodily injury and property
damage, a One Million ($1,000,000.00) Dollar limit per occurrence, if reasonably available, and
a Three Hundred Thousand ($300,000.00) Dollar minimum property damage limit.
10.3. Premiums. Premiums for all insurance on the Common Elements shall be a Common
Expense of the Association. The policies may contain a reasonable deductible, and the amount
thereof shall not be subtracted from the face amount of the policy in determining whether the
insurance at least equals the coverage required hereunder. The deductible shall be paid by the
party who would be liable for the loss or repair in the absence of insurance and in the event of
multiple parties shall be allocated in relation to the amount each party's loss bears to the total.
10.4. Specifications. All insurance coverage obtained by the Board of Directors shall be
written in the name of the Association as trustee for the respective benefited parties, as further
identified below. Such insurance shall be governed by the provisions hereinafter set forth:
10.4.1. All policies shall be written with a company authorized to do business in
the Commonwealth of Virginia which holds a Besfs rating of A or better and is assigned a
financial size category of XI or larger as established by A. M. Best Company, Inc., if reasonably
available, or, if not available, the most nearly equivalent rating which is available.
22
10.4.2. All policies on the Common Elements shall be for the benefit of the
Association and its Members, and their Mortgagees, as their interests may appear.
10.4.3. Exclusive authority to adjust losses under policies obtained by the
Association on the Properties shall be vested in the Association's Board of Directors; provided,
however, no Mortgagee having an interest in such losses may be prohibited from participating in
the settlement negotiations, if any, related thereto.
10.4.4. In no event shall the insurance coverage obtained and maintained by the
Association's Board of Directors hereunder be brought into contribution with insurance
purchased by individual Owners, occupants, or their Mortgagees.
10.4.5. All property insurance policies shall have an inflation guard endorsement,
if reasonably available, and, if the policy contains a co-insurance clause, it shall also have an
agreed amount endorsement. The Association shall arrange for an annual review of the
sufficiency of insurance coverage by one or more qualified persons, at least one of whom must
be in the real estate industry and familiar with construction in the County of Albemarle, Virgnia
area.
10.5. Additional Specifications. The Association's Board of Directors shall be required to use
reasonable efforts to secure insurance policies that will provide the following:
10.5.1. a waiver of subrogation by the insurer as to any claims against the
Association's Board of Directors, officers, employees and manager, the Owners and Occupants
of Dwelling Units, and their respective tenants, servants, agents, and guests;
10.5.2. a waiver by the insurer of its rights to repair and reconstruct, instead of
paying cash;
10.5.3. a statement that no policy may be canceled, invalidated, suspended, or
subject to nomenewal on account of any one or more individual Owners;
10.5.4. a statement that no policy may be canceled, invalidated, suspended, or
subject to nonrenewal on account of any curable defect or violation without prior demand in
writing delivered to the Association to cure the defect or violation and the allowance of a
reasonable time thereafter within which the defect may be cured by the Association, its manager,
any Owner, or Mortgagee;
10.5.5. a statement that any "other insurance" clause in any policy exclude
individual Owners' policies from consideration; and
10.5.6. a statement that the Association will be given at least thirty (30) days'
prior written notice of any cancellation, substantial modification, or non -renewal.
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10.6. Other Insurance. In addition to the other insurance required by this Section, the Board
shall obtain, as a Common Expense, worker's compensation coverage, if and to the extent
required by law, Directors' and officers' liability coverage, if reasonably available, fidelity
coverage on Directors, officers, employees, and/or other Persons handling or responsible for the
Association's funds, and flood insurance, if reasonably available. The amount of fidelity
coverage shall be determined in the Directors' best business judgment but, if reasonably
available, may not be less than one -sixth (1/6) of the Annual General Assessments on all Lots,
plus reserves on hand. Such coverage shall contain a waiver of all defenses based upon the
exclusion of persons serving without compensation and shall require at least thirty (30) days'
prior written notice to the Association of any cancellation, substantial modification, or
non -renewal.
10.7. Individual Insurance. Each Owner covenants and agrees with all other Owners and
with the Association that each Owner shall carry blanket all-risk property insurance on the Lot,
the Dwelling Unit and structures associated therewith. Each Owner further covenants and agrees
that in the event of a partial loss or damage resulting in less than total destruction of structures
comprising his or her Unit, the Owner shall proceed promptly to repair or to reconstruct the
damaged structure in a manner consistent with the original construction or such other plans and
specifications as are approved in accordance with Article IX of this Declaration. The Owner
shall pay any costs of repair or reconstruction which are not covered by insurance proceeds. In
the event that the structure is totally destroyed, the Owner may decide not to rebuild or to
reconstruct, in which case the Owner shall clear the Lot of all debris and ruins and thereafter the
Owner shall maintain the Lot in a neat and attractive, landscaped condition consistent with the
standard prevailing in the neighborhood. Each Owner shall be required to provide evidence of
such insurance upon request of the Association. This individual insurance requirement may be
supplemented or modified in a Supplemental Declaration.
10.8. Damage and Destruction.
10.8.1. Immediately after damage or destruction by fire or other casualty to all or
any part of the Property covered by insurance written in the name of the Association, the Board
of Directors or its duly authorized agent shall proceed with the filing and adjustment of all claims
arising under such insurance and obtain reliable and detailed estimates of the cost of repair or
reconstruction of the damaged or destroyed Properties. Repair or reconstruction, as used in this
paragraph, means repairing or restoring the Properties to substantially the same condition in
which they existed prior to the fire or other casualty, allowing for any changes or improvements
necessitated by changes in applicable building codes.
10.8.2. Any damage or destruction to the Common Elements shall be repaired or
reconstructed unless the Owners representing at least seventy-five (75%) percent of the total
votes of the Association, shall decide within sixty (60) days after the casualty not to repair or
reconstruct. If for any reason either the amount of the insurance proceeds to be paid as a result of
such damage or destruction, or reliable and detailed estimates of the cost of repair or
reconstruction, or both, are not made available to the Association within said period, then the
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period shall be extended until such funds or information shall be made available; provided,
however, such extension shall not exceed sixty (60) additional days. No Mortgagee shall have
the right to participate in the determination of whether the damage or destruction to Common
Elements shall be repaired or reconstructed.
10.8.3. In the event that it should be determined in the manner described above
that the damage or destruction to the Common Elements shall not be repaired or reconstructed
and no alternative improvements are authorized, then and in that event the affected portion of the
Properties shall be cleared of all debris and ruins and maintained by the Association, or the
Owners, as applicable, in a neat and attractive, landscaped condition consistent with the
standards prevailing in the neighborhood.
10.9. Disbursement of Proceeds. If the damage or destruction for which the proceeds of
insurance policies held by the Association are paid is to be repaired or reconstructed, the
proceeds, or such portion thereof as may be required for such purpose, shall be disbursed in
payment of such repairs or reconstruction as hereinafter provided. Any proceeds remaining after
defraying such costs of repair or reconstruction shall be retained by and for the benefit of the
Association and placed in a capital improvements account. In the event no repair or
reconstruction is made, any proceeds remaining after making such settlement as is necessary and
appropriate with the affected Owner or Owners and their Mortgagee(s), as their interests may
appear, shall be retained by and for the benefit of the Association and placed in a capital
improvements account. This is a covenant for the benefit of any Mortgagee of a Dwelling Unit
and may be enforced by such Mortgagee.
10.10. Repair and Reconstruction. If the damage or destruction to the Common Elements for
which insurance proceeds are paid is to be repaired or reconstructed, and such proceeds are not
sufficient to defray the cost thereof, the Board of Directors shall, without the necessity of a vote
of the Owners, levy a special assessment against the Owners. Additional assessments may be
made in like manner at any time during or following the completion of any repair or
reconstruction.
10.11. Additional Insurance Provisions. The Declarant or Board, without a vote of the
Owners, may amend the provisions of this Article or any supplemental provisions set forth in a
Supplemental Declaration, if such amendment is necessary to comply with secondary mortgage
market guidelines or is necessary or desirable to meet the requirements of any institutional
lender, the Veteran's Administration, the Federal Housing Administration, the Federal National
Mortgage Association, the Federal Home Loan Mortgage Corporation, or any other agency
which may insure or purchase loans on a Dwelling Unit.
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ARTICLE XI
CONDEMNATION
11.1. Whenever all or any part of the Common Elements shall betaken (or conveyed in lieu of
and under threat of condemnation) by any authority having the power of condemnation or
eminent domain, each Owner shall be entitled to notice thereof. No Owner, however, shall have
the right to participate in the proceedings incident thereto, unless otherwise required by law. The
award made for such taking shall be payable to the Association, as trustee for all Owners, to be
disbursed as follows:
11.1.1. If the taking involves a portion of the Common Elements on which
improvements have been constructed, then, unless within sixty (60) days after such taking the
Declarant and at least seventy-five (75%) percent of the Owners shall otherwise agree, the
Association shall restore or replace such improvements so taken on the remaining land included
in the Common Elements, to be extent lands are available therefore, in accordance with plans
approved by the Board. If such improvements are to be repaired or restored, the above provisions
in Article X hereof regarding the disbursement of funds in respect to casualty damage or
destruction, which is to be repaired, shall apply.
11.1.2. If the taking does not involve any improvements on the Common
Elements, or if there is a decision made not to repair or restore, or if there are net funds
remaining after any such restoration or replacement is completed, then such award or net funds
shall be disbursed to the Association and used for such purposes as the Board shall determine.
ARTICLE XII
DEVELOPMENT RIGHTS
12.1. Completion of Development. The Declarant reserves the rights to take any action
reasonably necessary to complete the development without consent of the Owners at any time
during the Development Period. The Declarant has the right to extend the Development Period
as may be reasonably necessary in the sole discretion of the Declarant. The Declarant shall
provide the Board written notice of such extension, which shall outline the reasons for such
extension as well as the specific time period needed for completion.
12.2. Submission of Additional Land. The Declarant reserves the rights to submit all or any
portion of the Additional Land to the terms of this Declaration without consent of the Owners at
any time during the Development Period. The submission shall be accomplished by the filing of
a Supplemental Declaration identifying the Additional Land, the Lots and the Common
Elements.
12.3. Notice to the Board. The Declarant shall promptly notify the Board of the filing of any
Supplemental Declaration.
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12.4. Easements Reserved. The Declarant reserves for itself, its successors and assigns and
any Builder, the following easements:
12.4.1. Easements for drainage and all utilities as shown on the Record Plan, and
all future plans in which Additional Land is shown.
12.4.2. Easements for ingress, egress, drainage and all utilities over the Common
Elements provided that such easements do not unreasonably interfere with any Owner's rights of
enjoyment.
12.4.3. An easement over the Common Elements as may be reasonably necessary
for the purpose of discharging its obligations or exercising any rights under the Declaration.
12.4.4. An easement for ingress, egress, drainage and all utilities over the
Common Elements and in favor of the Additional Property and the right to convey that easement
to others in the event that the Additional Property is not submitted to this Declaration.
12.5. Assignment of Development Rights. The Declarant reserves the right to assign any or
all of its Development Rights to any person or entity for the purpose of further development and
improvement of the Property. No assignment shall be effective unless in a writing filed with the
land records of the County of Albemarle, Virginia.
12.6. Transfer of Development Rights by Foreclosure. Unless otherwise provided in any
mortgage securing the Property held by Declarant, in the case of foreclosure of such mortgage,
deed in lieu of foreclosure, judicial sale, tax sale, sale under the U.S. Bankruptcy Code or
receivership proceedings, of any portion of the Property held by the Declarant subject to the
Development Rights herein reserved (including the Special Declarant Rights), a person acquiring
title to such property, but only upon his request, succeeds to all such Development Rights. The
judgment or instrument conveying title must provide for the transfer of such rights. Upon
foreclosure sale, deed in lieu of foreclosure, judicial sale, tax sale, sale under the U.S.
Bankruptcy Code or receivership proceedings, the Declarant ceases to have any of the rights
herein reserved. A successor to the Development Rights held by a transferee that acquired such
rights pursuant to this Section, may declare by a recorded instrument the intention to hold such
rights solely for transfer to another person. Thereafter, until transferring such Development
Rights to any person acquiring title to the Property subject to the Development Rights, or until
recording an instrument permitting exercise of such rights, that successor may not exercise any
of those rights, and any attempted exercise is void. So long as a successor declarant may not
exercise any Development Rights under this section, such declarant is not subject to any liability
as a declarant.
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ARTICLE XIII
SPECIAL DECLARANT RIGHTS
13.1. Use for Sale Purposes. Declarant reserve for itself, its successors and assigns, and any
Builder the right to maintain sales offices and models on the Lots owned by the Declarant.
13.2. Signs and Marketing. The Declarant reserve the right for itself and any Builder to post
signs and displays on the Property to promote sales of Lots, and to conduct general sales
activities, in a manner as will not unreasonably disturb the rights of Owners.
13.3. Control of the Association.
13.3.1. Appointment of Directors and Officers. The Declarant reserve the right to
appoint and remove the members of the Board and the Officers of the Association during the
Declarant Control Period which period will commence upon the recording of this Declaration
and shall terminate no later than the earlier of.
13.3.1.1. Five (5) years after recording of this Declaration, or longer if the
Development Period is extended pursuant to Article XII, Section 12.1 herein, and as
specified by such extension.
13.3.2. Early Termination of Control. The Declarant may voluntarily surrender
the right to appoint and remove Directors and officers before the termination of the period set
forth above. In that event, the Declarant may require, for the duration of that period, that
specified actions of the Association or the Board, be approved by Declarant before they become
effective. Such voluntary termination shall be evidenced by a recorded instrument executed by
the Declarant setting forth the termination of right to appoint and the actions which require
Declaranfs approval.
13.4. Declarant's Personal Property. The Declarant and any Builder reserve the right to
retain all personal property and equipment used in sales, management, construction and
maintenance of the premises that has not been represented as property of the Association. The
Declarant and Builder reserve the right to remove, within one (1) year after the sale of the last
Lot, from the Property any and all goods and improvements used in development, marketing and
construction, whether or not they have become fixtures.
13.5. Right to Amend Documents. Notwithstanding anything above to the contrary, this
Declaration may be amended at any time without the vote of Owners by a written instrument
executed by the Declarant for the purpose of eliminating or correcting any typographical or other
inadvertent error herein; eliminating or resolving any ambiguity herein; making nominal
changes; clarifying Declarant's original intent; making any change necessary or desirable to meet
the requirements of any institutional lender, the Veteran's Administration, the Federal Housing
Administration, the Federal National Mortgage Association, the Federal Home Loan Mortgage
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Corporation, or any other agency which may insure or purchase loans on a Lot. No such
amendment, however, shall materially affect any Owner's interest in the Association, such
Owner's Lot(s), or the Common Elements. Each Owner and his mortgagees, by acceptance of a
deed to a Lot or a mortgage encumbering such Lot, shall be deemed to have consented to and
approved of the provisions of this paragraph and the amendment of this Declaration by Declarant
as provided in the immediately preceding sentence. All such Owners and their mortgagees, upon
request of Declarant, shall execute and deliver from time to time all such instruments and
perform all such acts as may be deemed by a Declarant to be necessary or proper to effectuate
the provisions of this paragraph.
13.6. Declarant's Rights. Any or all of the special rights and obligations of the Declarant set
forth in this Declaration or the Bylaws may be transferred to other persons, provided that the
transfer shall not reduce an obligation nor enlarge a right beyond that contained in this
Declaration or in the Bylaws, as applicable. Furthermore, no such transfer shall be effective
unless it is in a written instrument signed by both the Declarant and the transferee and duly
recorded in the public records of the County of Albemarle, Virginia. Nothing in this Declaration
shall be construed to require the Declarant or any transferee to develop any of the property
adjacent to or contiguous with the Property.
Notwithstanding any provisions contained in this Declaration to the contrary, so long as
construction and initial sales of units shall continue, it shall be expressly permissible for the
Declarant and Builders to maintain and carry on upon portions of the Common Elements and
public streets such facilities and activities as, in the sole option of the Declarant, may be
reasonably required, convenient, or incidental to the construction or sale of such units, including,
but not limited to, business offices, signs, model units, sales offices, and rental units. The
Declarant and Builders authorized by Declarant shall have easements for access to and use of
such facilities as well as vehicular access for construction along public streets. The right to
maintain and carry on such facilities and activities shall include specifically, without limitation,
the right to units owned by the Declarant and any common area or other facilities which may be
owned by the Association, as models, sales offices, or rental units.
In addition, notwithstanding any contrary provision of this Declaration, the Bylaws, or
any Association rules, the Declarant shall have the right to replat or revise the recorded plats
relating to any portion of the Property without the consent of any Owner other than the Owner(s)
of the Lots in which the boundaries are altered.
So long as Declarant owns any land within the Property, Declarant may, without the
express written consent of any Owner, the Board, the Association or the Architectural Review
Committee, include in any contract or deed hereafter executed covering all or any portion of the
Property, any additional covenants or restrictions applicable to such lands, so long as they are
consistent with and do not lower the standards set forth in this Declaration and do not violate any
covenants or restrictions then in effect and recorded against the Property. Further, the Declarant
may make any amendments to the Declaration which are necessary to comply with the guidelines
established by, or the requirements of, any governmental authority, title insurer or institutional
al
lender without the express written consent of any Owner, the Association, the Board of
Directors, or the Architectural Review Committee.
During the Declarant Control Period, no person or entity shall record any declaration of
covenants, conditions and restrictions, or similar instrument affecting any portion of the Property
without Declarant's review and written consent. Any attempted recordation without compliance
herewith shall result in such declaration of covenants, conditions and restrictions, or similar
instrument being void and of no force and effect unless subsequently approved by written
consent signed by the Declarant and recorded in the public records.
ARTICLE XIV
DURATION, AMENDMENT AND TERMINATION
14.1. Duration. This Declaration, and its provisions, shall be covenants running with the land
and shall bind the property and shall (regardless of whether any such beneficiary owns an
interest in any Lot) inure to the benefit of and be enforceable by Declarant, the Association, and
each Owner, Occupant and their legal representatives, heirs, devisees, successors and assigns and
shall continue in full force and effect for twenty (20) years from the date on which this
Declaration is recorded. Thereafter this Declaration shall be automatically renewed for
successive ten-year periods unless amended or terminated as provided in this Article.
14.2. Amendment. Except as provided in Section 13.5, prior to the end of the Declarant
Control Period, any provision of this Declaration may be amended in whole or in part by a
recorded instrument executed by Declarant, approved by the Owners of at least 75% of all Lots.
14.2.1. Except as provided in this Section 14.2, after the end of the Declarant
Control Period, any provision of this Declaration may be amended in whole or in part by a
recorded instrument approved by the Owners of at least seventy-five (75%) percent of all Lots.
14.2.2. All Amendments shall be executed by the Declarant (if the Declarant's
consent is required), and shall be executed by the President of the Association. Such
Amendment shall certify that the proper notices were sent and that the requisite vote was
obtained. Amendments need not be signed by the Owners.
14.3. Termination. This Declaration and the regime created thereby may be terminated only
in accordance with this Section.
14.3.1. Consent Required. This Declaration may be terminated only upon consent
of the Owners of Eighty -Five (85%) Percent of the Lots, and if during the Declarant Control
Period, by consent the Declarant.
14.3.2. Agreement to Terminate. No termination shall be effective unless an
agreement to terminate is filed for record with the land records of the County of Albemarle,
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Virignia. This agreement shall be executed in the same manner as an amendment. The agreement
shall provide for disposition of the Common Elements, disposition of Association funds and
other resolutions and provisions necessary to terminate the regime and wind up the affairs of the
Association.
ARTICLE XIV
MISCELLANEOUS
15.1. No Reverter. No covenant, condition, restriction or reservation of easement contained in
this Declaration is intended to create, or shall be construed as creating, a condition subsequent or
a possibility of reverter.
15.2. Notices. Any notice required or permitted to be given to an Owner or resident by the
Board pursuant to the provisions of this Declaration shall be deemed given when transmitted
pursuant to the notice provisions set forth in the Bylaws to such person's last address as it
appears on the records of the Association.
15.3. Construction. The Board shall have the right to construe the provisions of this
Declaration, and, in the absence of an adjudication by a court of competent jurisdiction to the
contrary, such construction shall be final and binding as to all persons and entities benefited or
bound by the provisions of this Declaration.
15.4. Invalidity. The determination by a court of competent jurisdiction that any provision of
this Declaration is invalid for any reason shall not affect the validity of any other provision
hereof.
15.5. Discrimination. No action shall at any time be taken by the Association or its Board
that in any manner would discriminate against any Owner in favor of another.
15.6. Headings. The headings of the Articles and Sections are for conveyance only and shall
not affect the meaning or construction of the contents of this Declaration.
15.7. Gender. Throughout this Declaration, the any gender shall be deemed to include the
masculine, feminine and neutral, and the singular, the plural and vice versa.
15.8. Conflict. In the event of a conflict between the Restrictions or any one or more of them
and the restrictions of any Declaration which may be recorded subsequent to this Declaration, the
more restrictive restriction, covenant, condition, easement or other obligation shall control.
[Signature Page Immediately Follows]
31
IN WITNESS WHEREOF, the Albemarle Land Development, LLC has caused this
Declaration to be signed this _ day of 202.
ALBEMARLE LAND DEVELOPMENT, LLC
a Virginia limited liability
COMMONWEALTH OF VIRGINIA
ss:
C�1 Y 11_/LK1111�Y IIYI],1
Print Name:
Title:
The foregoing instrument was acknowledged before me, this _ day of
20� by I as of Albemarle Land
Development, LLC, a Virginia limited liability company, on behalf of the company.
Notary Public
32
33
Exhibit A
Legal Description of the Property
ALL those certain lots and/or parcels shown as Lots 1-7, and 31-59, as well as all rights -of -way,
open space, and easements, on that certain subdivision plat prepared by Roger W. Ray & Assoc.,
Inc., dated June 4, 2020, last revised 1 2021, entitled, "Subdivison Plat, Lots
1 Thru 7, and Lots 31 Thru 59, Phase 1, Proffit Road Townhomes North, Located on State Route
649 (Proffit Road), About 0.2 Miles East of U.S. Route 29 (Seminole Trail), Rivanna Magisterial
District, Albemarle County, Virginia" recorded with that certain Certificate of Plat dated
2021, in the Clerk's Office of the Circuit Court of the County of
Albemarle, Virginia in Deed Book at Page ;
Ril
Exhibit B
Additional Land that may be submitted.
ALL those certain lots and/or parcels shown as "Residue A, 16,335 SF (Future Development,
Phase 2, Lots 23 Thru 30)" and "Residue B, 36,238 SF (Future Development, Phase 2, Lots 8
Thru 22)," on that certain subdivision plat prepared by Roger W. Ray & Assoc., Inc., dated June
4, 2020, last revised , 2021, entitled, "Subdivison Plat, Lots 1 Thru 7, andw Lots 31 Thru 59, Phase 1, Proffit Road Tonhomes North, Located on State Route 649 (Profit
Road), About 0.2 Miles East of U.S. Route 29 (Seminole Trail), Rivanna Magisterial District,
Albemarle County, Virginia" recorded with that certain Certificate of Plat dated
2021, in the Clerk's Office of the Circuit Court of the County of
Albemarle, Virginia in Deed Book at Page ;
M1
Exhibit C
Chart of Maintenance Responsibilities
Item of Maintenance*
Responsibility For Cost of
Responsibility For Performance
Maintenance
of Maintenance/Repair"
Be air**
Common Elements, Open
Association
Association
Space
Individual Lot driveways
Lot Owner
Lot Owner, including snow and
ice removal
Sidewalks along common
Association
Association, including snow and
areas and fronting public
ice removal
streets
Common area landscaping
Association
Association will perform
and lawn
common area maintenance as
needed, mulch landscape beds
and trim shrubs annually,
maintain annual plantings and
fertilize common area lawn areas
3-4 times annually.
Individual Lot lawn and
Association
Association
landscaping (including
front and rear)
* FOR ANY ITEM NOT LISTED THE REPSONSIBILTY FOR COST AND THE
PERFORMANCE SHALL BE THE RESPONSIBILITY OF THE OWNER OF THAT
ITEM.
** UNLESS OTHERWISE PROVIDED IN THE DECLARATION,
MAINTENANCE/REPAHt SHALL INCLUDE THE OBLIGATION TO REPLACE.