Amended and Restated Declaration of Condominium for Fleetwood Plaza Condominiums[1] Scroll down to read the entire Declaration, or click on any title in the Menu Bar to the left to go to a particular article or section, or to other documents. The Menu Bar will remain fixed on your screen, so you can always access it. When you are reading anywhere farther down in the document, a button will appear in the right margin which is a link back to the top of this page. Links or footnote numbers within this document lead to definitions of terms, related information, or specific articles or sections within this or other documents.
Article 1
The real property and improvements which comprise Fleetwood Plaza Condominiums
are
hereby submitted to the provisions of the
North Carolina Condominium Act (N.C. Gen. Stat. § 47C-1-101 et seq.) (referred to hereafter and in
the Bylaws as the "Condominium
Act")
in accordance with the provisions of the Condominium Act and particularly as is permitted by N.C. Gen. Stat._ § 47C-1-102(b). Submission of the governance, administration, and operation of the Condominium to the
Condominium Act is for the benefit of all Owners at Fleetwood Plaza Condominiums and to allow the Owners to take advantage of the expanded statutory basis for the governance of condominiums offered by the Condominium Act.
Article 2
Section 2.1
Name. The name of the condominium is Fleetwood Plaza
Condominiums (sometimes referred to herein as "Fleetwood Plaza" or
"Condominium").
Section 2.2
Location. The
Condominium is located in Henderson
County, North Carolina. Metes and bounds, graphic descriptions, and
plans of improvements constituting the Condominium, identifying the Units and
the
Common Elements thereof are more precisely set forth in Exhibits attached
to the Original Declaration and the eleven supplements to the Original
Declaration, recorded with the Original Declaration and eleven supplements to
the Original Declaration in the Henderson County, North Carolina, Registry of
Deeds and the references to Deed Books and page numbers set forth above.
Article 3
In accordance with Section 47C-1-103 of the
Condominium Act and
unless specifically provided otherwise or the context otherwise requires, the following terms
as
used in the
Declaration and Bylaws for the Condominium shall
have the following meanings:
Section 3.1
Allocated Interests
means
the undivided interest in the
Common Elements, time common expense liabilities, and votes in the
Association
allocated to each Condominium Unit.
Section 3.2
Assessments
means any and all sums levied
by the
Association against any Unit and its Owner as common expenses or other charges to include but not be limited to
common expense liabilities, special assessments, specific assessments, fines, late charges, interest
and attorney's fees as set forth
in
the Declaration and
Bylaws.
Section 3.3
Association, Regime or Unit Owners Association or Condominium Association
means
Fleetwood Plaza Regime, a North Carolina non-profit corporation and
its
Successors.
Section 3.4
Board or Board of Directors
means the Board of Directors of Fleetwood
Plaza Regime which is the governing body on behalf of and for the
Association designated the Executive Board in N. C. Gen. Stat. § 47C-1-103(13); Director or Directors means a member or
members of the Board.
Section 3.5
Bylaws
means the
Bylaws of Fleetwood Plaza Regime which are
incorporated by reference
as "Exhibit A",
attached
hereto.
Section 3.6
Charter or Corporate Charter
means
the Articles of Incorporation of Fleetwood Plaza Regime, an incorporated non-profit condominium association, as shown in "Exhibit B"
to
this Declaration[4]
and which is hereby incorporated by reference.
Section 3.7
Common Elements
means
all portions of
the Condominium other than the
Section 3.8
Common Expenses
mean expenses or financial liabilities for the operation of and connected in any way with the administration of the Condominium. These include:
Section 3.9
Common Expense Liability
means the liability for common
expenses allocated to each
Unit
pursuant to N.C. Gen Stat. § 47C-2-107 and for any
other common expense or charge in accordance with the Declaration and
Bylaws.
Section 3.10
Condominium
means Fleetwood Plaza, that real estate,
and improvements thereon, as described in
Article 2 of this Declaration and
in
the exhibits and instruments referenced therein.
Section3.11
Declaration
means this Amended and Restated Declaration of Condominium, Fleetwood Plaza Condominiums, the Documents filed of record in accordance with
the Condominium Act for the purpose of creating the Condominium, and including any duly
recorded amendments to such Documents.
Section 3.12
Documents
mean
the Declaration, Plans
recorded and filed,
the Corporate Charter, the Bylaws, and the Rules and Regulations
as they may be amended from time
to time. Any
exhibit, schedule, or
certification
accompanying a Document is
part
of that Document.
Section 3.13
Limited Common Element
means a portion of the
Common Elements
allocated by the Declaration
for the exclusive use of one or more but fewer than all of the
Units, including,
but not limited to those
areas so designed in the Plans filed as exhibits
to
the Original Declaration and the eleven supplements thereto, which are hereby incorporated by reference and
those elements so designated in
Article 6 of
this Declaration.
Section 3.14
Majority of the Total Votes
in the
Association means
fifty percent
Section 3.15
Mortgage
shall refer to any mortgage, deed of trust, deed to secure debt or other transfer, or conveyance for the purpose of securing the performance of an obligation.
Section 3.16
Notice and Opportunity to be Heard
mean the right of a
Unit
Owner
to receive notice of an action proposed to be taken
by
or on behalf of the
Association and the right
for an opportunity to be heard thereon. The procedures for such notice and opportunity to be
heard
are
set forth in Article VIII of the
Bylaws.
Section 3.17
Officer
shall mean those individuals who are elected
by the Board to
serve as officers of the
Association to include President, Vice President, Secretary, Treasurer and
such other support and
offices as the Board may
determine necessary.
Section 3.18
Person
means a natural person,
corporation, business, trust, estate trust, partnership, association,
joint venture, government, governmental subdivision or agency or other
legal or commercial entity.
Section 3 .19
Plans means
those Plans recorded in the
Unit
Ownership File of
the Henderson County Registry, which are referenced by the Original Declaration and Supplemental Declarations.
Section 3.20
Resident means and includes owners, their immediate family members, tenants, and lessees.
Section 3.21
Supplemental Declarations
means
those
eleven supplements to the Original Declaration recorded in the Henderson County Registry of Deeds by Fleetwood Properties, Inc. which are referenced above[5]
in the Recital hereto, including all Exhibits and
Plans recorded therewith, which are hereby incorporated by reference.
Section 3.22
Unit or Condominium Unit
means
the
physical portion of the
Condominium designated for separate ownership or occupancy whose boundaries are as set forth
in
Article 4 in this Declaration. Section 3.23 Unit Owner or Owner or Member means a person or persons who own a Unit that is (are) the record Owner(s) of a Unit within the Condominium but shall not mean a mortgage holder.
Section 4.1
Unit Designations and Descriptions.
The Condominium consists of sixty-three
The principal materials of which the buildings are constructed are as follows:
The buildings are wood frame buildings with cement footings
and concrete or cinder
block foundations. The exterior is of brick veneer, cedar siding
and stucco board. The roofs
are
covered with fiberglass or asphalt shingles on plywood underlayment.
All open deck ceiling fans
and all outdoor lights which are controlled from within the unit shall be a part of the
unit. The repair and replacement of all the items denominated
in
this paragraph shall be the responsibility of the
Unit
Owner; however, the type and style of such outdoor fans and lights
shall be
subject to the control of the Board of Directors.
In interpreting this Declaration and its Plans, the actual physical boundaries of a unit as originally constructed, or of a unit reconstructed in substantial compliance
with the original plans
thereof, shall be conclusively presumed to be its boundaries rather than the metes and bounds expressed in this
Declaration, or its Plan,
regardless of settling or
lateral movement of the
building, and regardless of minor variances between boundaries
shown on the Plans, and those of
the Unit. Each Unit designation, type unit, and percentage interest in the
Common Elements are set out in Article 4,
Section 4.1 of
this Declaration.
Section 4.2
Fractional Interests.
The undivided fee simple fractional interest in the
Common Elements
of the condominium
and in the common expenses of the
Association for each unit is equal. There are sixty-three (63) units,
so the interest of each unit is 1 and 37/63rds
percent. Said fractional
interests are set out above and were formulated by the developer,
Fleetwood Properties, Inc. in the Original Declaration and the eleven
supplements thereto. These interests
and
their
formulation
are now in accordance with Section
47C-2-107
of the
Condominium Act.
Common
expenses shall
be shared by the
Owners on
the
basis
of the percentage interest of each Unit. Each Unit shall have one (1) vote on every matter for which a
vote of the membership is required by the
Documents.
Section 5.1
Common Elements.
Common elements include all parts
of the Condominium located outside
the boundaries of
the respective Units, including but not limited to:
The maintenance of the common elements shall be as set forth in this Declaration and
the
Bylaws of the
Association.
Section 5.2
Percentage Interest. The
Unit
Owners shall own the Common Elements, including the
Limited Common Elements
as tenants in common, with each unit having appurtenant thereto the percentage
interest in said Common Areas and Facilities as set forth in Article 4, Section
4.1 hereof; provided, however, the use of the Limited Common Elements shall be restricted as set forth
in Article 6 of this Declaration.
Section 5.3
Inseparability of Percentage Interest.
The
percentage interest in the
Common Elements
cannot be separated from the
unit to which it appertains and shall automatically
he conveyed or encumbered with the unit, even though such interest is not expressly
mentioned or described in the deed or other instrument.
Section 5.4 No
Partition.
The
Common Elements shall remain undivided and no right
to partition the same or any part thereof shall exist except as provided in the
Condominium Act, this Declaration, and the
Bylaws. Nothing contained herein, however,
shall be deemed to prevent ownership of a
condominium unit by more than one person,
either as tenants by the entireties, or as tenants in common, or in any other
form by law permitted.
Section 5.5
Use of Common Elements.
Each
Unit
Owner shall have
the right to use the
Common Elements in accordance with the purposes for which they are intended without hindering the exercise of or encroaching upon the rights of other unit owners. The Board shall,
if
any question
arises, determine the purpose for which a part of the Common Elements is intended for use. The
Board shall have the right to promulgate rules and regulations limiting the
use of some or all of the Common Elements to unit owners and their
guests and
to
promulgate rules
and regulations to provide for the exclusive
use of a part of the Common Elements by a unit owner and his or
her guests for special occasions, which exclusive use may be conditioned upon, among other things, payment of a fee. Any unit owner may delegate, in accordance with the provisions of
this Declaration and the Bylaws and reasonable Rules and Regulations of
the Board,
his right to use the Common Elements to the immediate members of his family living in the Unit,
to
a limited number of guests, or
to
tenants who reside in his
condominium unit.
Article 6
The limited common elements are designated in Exhibits to the Original Declaration and Supplemental Declaration, and in the Plans therein referenced as "Limited Common Areas and
Facilities". A
Unit
Owner shall
be
entitled to the
exclusive use or use with other Unit Owners served
by the limited common elements appurtenant to certain Units. Limited common elements
shall not be separate and apart from the
Common Elements in general, being limited
only in that they are reserved to the use of certain Units. Such limited common
elements include all balconies, decks, terraces, patios (concrete slabs), trash
storage areas, outside stairways and entrance areas, carports, parking spaces
and any other area so designated on the Plans or designated by the
Board of Directors
as a limited common element appurtenant to a Unit.
Exclusive use of the limited common elements may be delegated
by an Owner to the immediate members of his family, his guests, or tenants who
reside in the Unit. Owners may place plants, furniture, or similar items within
the limited common elements adjacent to or appurtenant to the Unit, subject to
reasonable rules and regulations duly adopted by the Board. No Owner shall build
or construct any storage or workshop
facility or similar structure within the
limited common elements without the prior written approval of the Board of Directors.
Article 7
Section 7.1
Residential.
Each of the
units now constructed or to be constructed on the property shall be, and the same
hereby are, restricted exclusively to single-family residential use, and shall
be occupied only by a single family, its nurses, aides, servants, or caretakers,
and guests. The provisions of this Paragraph do not apply to property being used
by the Regime as incidental to the operations and organization of the Regime.
Section 7.2
Restrictions in General. The
units and
Common Elements of the
Condominium are subject to the restrictions contained in this Declaration and
as may be set forth in the
Bylaws and Rules and Regulations of the
Association.
All Owners and other persons are subject to these restrictions and subject to
the enforcement sanctions as are set forth in the
Condominium Act, this Declaration,
and Bylaws.
Section 7.3
Business Activities. No business activities shall be conducted
on any portion of the property, provided, however, the foregoing restrictions
shall not apply to the Regime as provided above; provided further, private offices
may be maintained in a
unit so long as such use is incidental to the primary residential
use of the unit and is approved by the
Board of Directors. The property shall
not be used in any way or for any purpose which may endanger the health of or
unreasonably disturb the Owner of any Unit or any resident thereof. The Board
of Directors of the
Association shall, in its sole discretion, determine what
constitutes a health hazard or unreasonable disturbance. No Owner shall make any
use of a Unit or store or keep anything in a Unit which will increase the insurance
rates for the Association or for other
Unit
Owners.
Section 7.4
Alterations and Attachments by Unit Owner. No
Unit
Owner
shall make structural alterations or modifications to his unit or to any of the
Common Elements, or
Limited Common Elements, without the written approval of the
Board of Directors. The Board of Directors shall not approve of any alterations,
decorations, or modifications which would jeopardize or impair the soundness,
safety, or overall appearance of the Condominium Property.
Section 7.5
Motor Vehicles. No motor vehicles (other than private
passenger vehicles), boat, boat trailer, mobile home, motor home, trailer, or
any similar items shall be stored in or upon the
Common Elements, or
Limited Common Elements, unless placed upon a portion of the Common Elements, or Limited Common
Elements, which is designated for such purpose, or which may be designated from
time to time by the Board for the storage of such items.
Section 7.6
Signs. No sign, advertisement, notice, or other lettering shall
be exhibited, inscribed, painted or affixed by any Owner on any portion of the
exterior or interior (if visible from the outside) of any
unit or on any portion
of the
Common Elements without written permission from the Board. In its sole
discretion, the Board may have signs erected on the common elements for identification
or for such other purposes as the Board finds necessary.
Section 7.7
Prohibitions in Use of Common Elements. Except where
indicated on the Plans and exhibits attached to the Original Declaration and
Supplemental
Declarations, or on specific approval of the Board, the
Common Elements, including
Limited Common Elements, shall
not be used for temporary or permanent storage of supplies, personal property, trash,
or
refuse of any
kind, except in common trash
receptacles
placed at the discretion of the Board, nor shall
they be used in any way for the drying or
airing of clothing, rugs, or other fabrics. Entrances, sidewalks, yards, driveways, parking areas
and stairways shall not be obstructed in any way. In general, no activities shall be carried on nor condition maintained by any
Unit
Owner either in his unit or
upon the Common Elements, if such activities should despoil, or
tend to despoil, the appearance of the Condominium Property. It is expressly acknowledged and agreed by all parties concerned that this section is for the mutual benefit of all owners on the condominium property and is necessary for the protection of the unit owners and is
enforceable by the Board or any one or more unit owners.
Section 7.8
Animals:
No
animal shall be kept on the Condominium
Property, except normal, small household pets ordinarily kept in homes. Such
pets may not be kept or
bred for any commercial purpose and shall have such care and restraint as is necessary to prevent them from being or becoming obnoxious or offensive on account of noise, odor, unsanitary conditions, or other nuisance. No savage or dangerous animal shall
be
kept or
permitted on the Condominium Property. No more
than one household pet may be housed within a
unit without written permission
of the board. No pets may be permitted to run loose upon the
Common Elements,
and any
Unit
Owner who causes or permits any animal to be brought or kept upon
the Condominium Property shall indemnify and hold the Regime harmless for and
from any loss, damage, or liability which it sustains as a result of the presence
of such animal on the Condominium Property, regardless of whether the Regime or
the Board has given its permission therefore. Whenever such pet is allowed outside
the living unit, then the pet must be on a leash and any animal droppings which
occur during such time as the pet is outside the living unit must be immediately
collected by the owner.
Section 7.9
Access to Units. The Regime or its agent shall have access
to each
unit from time to time during reasonable working hours, upon oral or
written notice to its owner, as may be necessary for the maintenance, repair,
or replacement of any of the
Common Elements, including
Limited Common Elements. The Regime or its agent shall also
have access to each unit at all times without notice as may be necessary to make
emergency repairs to prevent damage to Common Elements, to another unit, or to
the unit itself.
Section 7.10
Subdividing. No
unit may be divided or subdivided
into smaller units, nor any portion thereof sold or otherwise transferred, without
first amending the Declaration to show the changes in the units to be affected
thereby; provided that any amendment to this Declaration providing for the subdivision
into smaller units must be approved by ninety percent (90%) of the
Unit
Owners
entitled to cast votes at a meeting of the membership called for such purpose.
Section 7.11
Nuisances. No nuisances shall be allowed upon the Condominium Property
and no person shall engage in any use, practice, or activity upon such property
which is noxious, offensive, or a source of annoyance to
Unit
Owners or which
reasonably interferes with the peaceful possession and proper use of the property
by any unit owner. The Board, in its sole discretion, shall have the power and
authority to decide what acts or actions constitute a nuisance. All parts of the
pro#perty shall be kept in a clean and sanitary condition. No rubbish, refuse,
or garbage shall be allowed to accumulate and no fire hazard shall be allowed
to exist. Any unit owner (or his family, tenants, guests or agents) who shall
dump or place any trash or debris upon any portion of the property shall be liable
to the Regime for the actual cost of removal thereof and the same shall be added
to and become a part of the assessment next coming due to which the unit owner
is subject.
Section 7.12
Antenna.
There shall be no
exterior antenna for television, radio, citizen band, ham radio, nor any other
exterior fixture or appliance for electronic devices or for transmission or
receipt of communication signals except with the written express permission of
the
Board of Directors. Antenna may be placed within attic areas. Notwithstanding
the restrictions in this paragraph, in the event that the Federal Communications
Commission issues regulations governing the placement of antennas or satellite
dishes in condominiums, the Board is hereby authorized to develop and enforce
further rules, in accordance with such regulations, for the placement of antennas
and/or satellite dishes.
Section 7.13
Lawful Use. No immoral, improper, or unlawful use shall be made of
the Condominium Property nor any part thereof. All valid laws, zoning ordinances, and regulations of governmental bodies having jurisdiction thereof shall
be observed.
Section 7.14
Weatherization of Units.
At all times a
Unit
Owner shall maintain sufficient heat in his unit to
prevent the freezing of any water pipes and shall follow similar
weatherization procedures as established by the Board from time to time.
Section 7.15
Restriction on Transfer of Common Areas.[7] The Regime shall
not seek to abandon, partition, subdivide, encumber, sell or transfer any portion
of the
Common Elements, without the written approval of owners and mortgage holders
of
units totaling eighty percent (80%) of the percentage interest in the Common
Elements, and one hundred percent (100%) of those having use of Limited Common
Areas thereby affected. The granting of easements for public utilities or other
public purposes consistent with the intended use of the Common Elements shall
not be deemed a transfer within the meaning of this paragraph. Section 7.16 Rules and Regulations. The Board may from time to time promulgate reasonable rules and regulations respecting the restrictive covenants set out in this Article, but such rules and regulations shall be consistent with the restrictions and not in derogation of or intended as an amendment thereof.
Section 7.17
Leasing of Units.
Leasing of
units shall be conducted as set forth in
Article 13 of this Declaration.
Section 7.18
Prohibition of Time-Sharing. Time-sharing and time shares as defined
in the
North Carolina Time Share Act (N.C. Gen. Stat. § 93A-39 et seq.) of any
unit in the Condominium is prohibited.
Section 7.19
General.
The
Board of Directors may, from time to time, without consent
of
members, promulgate, modify, or delete rules and regulations applicable to the
units,
Common Elements, or Condominium Property as a whole. Such regulations and
use restrictions shall be binding upon all Owners and occupants until and unless
overruled, canceled, or modified in a regular or special meeting by the vote of
Owners holding a majority of the total votes in the
Association. Such rules and
regulations may be enforced by the Association in accordance with the
Condominium Act, the Declarations and By-laws, to include but not be limited to the imposition
of monetary fines and penalties.
All
Unit
Owners, tenants, mortgagees, and occupants of Units
shall comply with the Declaration, By-Laws, and Rules and Regulations. The acceptance
of a deed or the exercise of any incident of Ownership or the entering into any
lease or the entering into occupancy of a Unit
constitutes agreement
that the provisions of the Declaration, By-laws and Rules and Regulations are
accepted by, ratified by and are binding on all Unit Owners, tenants, mortgagees,
occupants and their guests and invitees.
Article 8[8]
Section 8.1 Authority to Purchase Insurance.
All required or permitted insurance policies (other than
title insurance and insurance on betterments and improvements to
the
Units and
Limited Common Elements, if any) upon the property
(other than the personal property of the
Owners)
shall be purchased by the
Association in the name of the
Association, as Trustees for the Owners and their respective
mortgagees as their interests may appear, and shall provide for
the issuance of certificates or memoranda of insurance to the
Association and to any Owner, mortgagee, or beneficiary of a deed
of trust.
Each Owner may obtain insurance, at his own expense,
affording coverage upon his Unit, his personal property and
betterments and for his personal liability as may be permitted or
required by law, and such insurance shall, if available, contain a
waiver of subrogation as to any claims against Owners, the
Association and their respective servants, agents and guests.
Section 8.2 Insurance Coverages.
The following
insurance
coverage shall be maintained in full force and effect by the
Association:
Casualty insurance covering the
Common Elements,
and to the extent reasonably available, the
Units, including all
buildings and all improvements upon the land and all personal
property included within the Condominium, except such personal
property as may be owned
by the
Owners, shall be
procured in an amount equal to one hundred percent (100%) of the
maximum insurable replacement value thereof (exclusive of land,
excavation and foundations) as determined annually by the
insurance company affording such coverage.
Such coverage shall afford protection against: (a) loss
or damage by fire and other hazards covered by the standard
extended coverage endorsement; (b) loss or damage by flood; and,
(c) such other risks as from time to time customarily shall be
covered with respect to buildings similar in construction,
location and use, including, but not limited to, vandalism and
malicious mischief.
Casualty insurance obtained for the buildings and improvements
shall provide such coverage commonly known as "all-inclusive
building" coverage and/or "completed Unit" coverage as such
terms are used in the insurance industry, and shall include, but
not be limited to, all components of the Units together with
fixtures, cabinets, built in appliances and all other such
improvements which were part of the original completed Units,
except for betterments and improvements installed by the Owner.
Public liability and property damage insurance in
such reasonable amounts and covering all occurrences commonly
insured against including, death,
bodily
injury, and property damage arising out of or in connection with
the use, ownership, or maintenance of the Common Elements, and
in such forms as shall be required by the Association,
including, but not limited to, legal liability, hired
automobiles, non‑owned automobile and off‑premises employee
coverage. All
liability insurance shall contain cross‑liability endorsements
to cover liabilities of the Owners as a group to an Owner.
Worker's
Compensation
Insurance if and to the extent necessary to meet the
requirements of North Carolina law
Officers
and Directors Liability Insurance in such amount as the Board
may determine. Such
insurance shall contain a cross liability endorsement
Such
other
insurance as the Board of Directors may determine to be
necessary.
Section 8.3 Premiums - Common Expenses.
Premiums
upon
insurance policies purchased by the
Association shall be paid by
the Association as Common Expenses to be assessed and collected
from all of the
Owners of
Units.
Section 8.4 Deductibles.
The deductible, if any, on any insurance policies
maintained by the Association shall be paid by the
Association
as a Common Expense.
In the event that the cause of any damage or destruction of any
portion of the Condominium originated in or through the
Common Elements or an apparatus located
within the Common Elements, the Association may assess (i) any
deductible amount necessitated by either the intentional act or
omission, negligence, abuse, misuse or neglect of an
Owner, or
his or her family, guest, tenant, or the family or guest of said
tenant, against such Owner; and (ii) a proportionate share of
the deductible amount to any Owner whose
Unit is repaired (or
which Owner is compensated) by funds from the insurance policies
maintained by the Association, based on the proportionate amount
of insured loss incurred to the Unit relative to the total
insured loss to the Common Elements and other Units.
In the event that the cause of any damage or destruction
to any portion of the Condominium originated in or through a
Unit or any component thereof, then the Owner of said Unit shall
pay the deductible under the Association's master casualty
policy without regard to
whether the Owner was negligent.
If an Owner fails to pay the deductible assessed against
his or her Unit and the Association pays the deductible cost
owed by the Owner, then the deductible cost paid by the
Association shall be charged to the Unit as an assessment for
which the Association shall have a lien.
Section 8.5 Insurance Claim Adjustment. Any
loss covered by the property insurance maintained by the
Association shall be adjusted with the Association; provided,
however, all insurance policies purchased by the Association
shall be for the benefit of the Association and the
Owners and
their Mortgagees, as their respective
interests may appear, and shall
provide that all proceeds payable as a result of
casualty
losses shall be paid to the Association as Trustee.
The Trustee shall hold such proceeds in trust for the
benefit of the Owners and their respective Mortgagees as their
interests may appear.
Section 8.6 Mortgagee-Insurance Proceeds.
In the event a mortgage endorsement has been issued for a
Unit, the share of any insurance proceeds of the
Owner shall be
held for the Mortgagee and the Owner as their interests may
appear, but nothing herein contained shall be construed so as to
give any Mortgagee the right to determine or participate in the
determination of reconstruction or repair.
Section 8.7 Use of Insurance Proceeds.
Proceeds of insurance policies received by the
Association shall be disbursed first for the repair,
reconstruction, or restoration of the damaged property, and
Owners and lienholders are not entitled to
receive
payment of any portion of the proceeds unless
there is a
surplus of proceeds after the property has been completely
repaired or restored, or the Condominium is terminated except as
specified in Article 9.
Section 8.8 Reimbursement of Initial
Insurance Premiums.
Declarant shall pay the premium(s) of the initial
insurance policies required by this Article and shall be
reimbursed for the pro rata portion of the cost thereof by each
Owner at the time each
Unit is conveyed to a Person other than
Declarant, or
reimbursed by
the
Association.
Section 8.9 Insurance Policy Requirements.
Insurance policies
carried
pursuant to this Article shall provide that:
Each
Owner
is an insured person under the policy with respect to liability
arising out of his interest in the
Common Elements or membership
in the
Association;
The
insurer
waives its right to subrogation under the policy against any
Owner or members of his household, if applicable;
No act or omission by any Owner, unless acting within the scope
of his authority on behalf of the Association, will preclude
recovery under the policy;
If, at
the
time of any loss under the policy, there is other insurance in
the name of an Owner covering the same risk covered by the
policy, the Association's policy provides primary insurance; and
The
insurer
issuing the policy may not cancel or refuse to renew it until
thirty (30) days after notice of the proposed cancellation or
nonrenewal has been mailed to the Association, each Owner and
each Mortgagee or beneficiary under a deed of trust to whom
certificates or endorsements have been issued at their
respective last known addresses.
Section 8.10 Insurance
Coverage-Betterments. The
Association shall not be required to maintain insurance coverage
for any betterments or
improvements to the Units and/or
Limited Common Elements added by any
Owner and an Owner may be required to
maintain such liability coverage as is otherwise provided
herein.
Section 8.11 Insurance Availability
Notification.
If the insurance described
in this Article is not reasonably available, the
Association
promptly shall cause notice of that fact to be hand delivered or
sent prepaid by United States mail to all
Owners.
Section 8.12 Fidelity Insurance.
If desired, the
Association may maintain
fidelity insurance.
Section 8.13 Unit
Owner's Insurance.
Each
Unit
Owner may obtain
insurance at his or her own expense for contents and personal
property coverage or any other coverage obtainable and to the
extent and in an amount such Owner deems necessary to protect
his or her interest; provided however, that any such insurance
shall provide that it is without contribution as against the
insurance purchased by the
Association.
If a casualty loss is sustained and there is a reduction
in the amount of the proceeds that would otherwise be payable on
the insurance purchased by the Association due to the portion of
the insurance purchased by a Unit Owner under this section, such
Unit Owner shall be liable to the Association to the extent of
such reduction and shall pay the amount of such reduction upon
demand and shall assign the proceeds of that Unit Owner's
insurance to the extent of such reduction to the Association. Additionally, each Unit Owner shall pay for
and keep in force comprehensive personal liability insurance for
damage to person or property of others occurring within such
Owner's Unit, another Unit or upon the
Common Elements, in such
amounts as the Board of Directors from time to time determines,
but in no case less than One Hundred Thousand Dollars
($100,000.00) for each occurrence.
If an Owner does not carry such insurance and, as a
result, the Association or another Owner incurs any cost or
damages; then any and all such cost and costs of repair shall be
an assessment against the uninsured Owner. Improvements, alterations and betterments
made to units by individual unit owners (or their predecessors)
shall be separately insured by each individual unit owner under
the provisions of this section if they were not insured by the
Association under its policies. Unit owners are free to purchase and should
consider purchasing loss-assessment coverage under their
individual policies under this section in the vent that the
insurance limits of the Association policies are ever exceeded
(which could result in the Association having to impose
assessments on individual unit owners to make up for any
insurance shortfall).
Article 9[9]
Section 9.1 Reconstruction-Costs.
Any portion of the Condominium for which insurance is
required pursuant to Article 8 which is damaged or destroyed
shall be repaired or replaced promptly by the
Association unless
(1) the Condominium is terminated, (2) repair or replacement
would be illegal under
any State or local health
or
safety statute or ordinance, or (3) the
Owners decide not to
rebuild by an eighty percent (80%) vote, including one hundred
percent (100%) approval of all Owners of
Units
not to be rebuilt
or Owners of Units assigned to
Limited Common Elements not to be
rebuilt. The cost of
repair or replacement in excess of insurance proceeds and
reserves shall be a Common Expense.
If the entire Condominium is not repaired or replaced,
(1) the insurance proceeds attributable to the damaged
Common Elements shall be used to restore the damaged area to a
condition compatible with the remainder of the Condominium,
(2) the insurance proceeds attributable to Units and Limited
Common Elements which are not rebuilt shall be distributed to
the Owners of those Units and the Owners of the Units to which
those Limited Common Elements were allocated or to lienholders,
as their interests may appear, and (3) the remainder of the
proceeds shall be distributed to all of the Owners or
lienholders, as their
interests
may appear, in proportion to their Common Element interest.
If Owners vote not to rebuild any Unit, that Unit's
allocated interests automatically shall be reallocated upon the
vote as if the Unit had been condemned pursuant to N.C. Gen.
Stat. § 47C‑1‑107(a), and the Association promptly shall
prepare, execute and record an amendment to this Declaration
reflecting the reallocations.
Unless otherwise prohibited, any such reconstruction or
repair shall be substantially in accordance with the plans and
specifications contained herein.
Section 9.2 Estimates of Replacement Costs.
Immediately after the casualty causing damage to property for
which the
Association has the responsibility for maintenance and
repair, the Association shall obtain reliable and detailed
estimates of the cost to place the damaged property in a
condition as good as that before the
casualty.
Such costs may include professional fees and premiums for
such bonds as the Board of Directors deems necessary or
appropriate.
Section 9.3 Priority of Repair.
When the damage is to
Common Elements,
Limited Common Elements and
Units, the insurance proceeds will be applied first
to the costs of
repairing the Common Elements,
secondly to the cost of repairing the Units,
and
thirdly to the cost of repairing the Limited Common Elements.
Section 9.4 Association Right to Insurance
Adjustments.
Each
Owner shall be deemed to have
delegated to the
Association his right to adjust with insurance
companies
all losses under policies purchased by the Association.
Article 10
Section 10.1
Encroachments.
In addition to the easements created by
Section 47C-2-114 of the
Condominium Act, in the event that, by reason of destruction,
reconstruction, rehabilitation, alteration or improvement of the building or improvements
compromising a part of the Condominium Property, any part of the
Common Elements
now or hereafter encroaches upon any part of any
unit, or any part of any Unit
now or hereafter encroaches upon any part of the common elements or upon any part
of another Unit, an easement for the continued existence and maintenance of
each encroachment is hereby declared and granted and shall continue for so long
as each such encroachment exists; provided that in no event shall an easement
for such encroachment be created if such encroachment is detrimental to or interferes
with the reasonable use and enjoyment of the common elements or Units so encroached
upon.
Section 10.2
Owners’ Easement of Enjoyment.
Every
Owner shall have a right and easement of enjoyment in and to the
Common Elements,
and the easement granted herein shall be appurtenant to and shall pass with the
title to every
unit, subject to the following provisions:
If an Owner leases his/her Unit, the Owner shall transfer
and assign to the lessee for the term of the lease any and all rights and privileges
that the Owner has to use the
Common Elements and
Limited Common Elements of the
Condominium, to include, but not be limited to, the use of any and all recreational
facilities or other amenities. Such Owner shall during the term of such lease
have no rights to the use of any recreational facilities or the common elements.
Section 10.3
Easements of Association.
There shall exist the following easements
from each
Unit
Owner to the
Association for the benefit of the Association and
each other Unit Owner (as the case may be)
Section 10.4
Utility Easements.
There
is hereby created a blanket easement upon, across, over, and under all of the
Condominium Property for ingress, egress, installation, replacing, repairing,
and maintaining all utilities, including, but not limited to, water, sewers,
storm drainage, gas, telephones, and electricity and a master television antenna
system. An easement is further granted to all police, fire protection, ambulance,
and all similar persons to enter upon the
Common Elements in the performance of
their duties. Further, an easement is hereby granted to the
Association, its respective
officers, agents and employees, and to any management company selected by the
Association to enter in or to cross over the common elements provided for herein.
Notwithstanding anything to the contrary contained in this paragraph, no sewers,
drains, electrical lines, water lines, or other utilities may be installed or
relocated on said property except as approved by the
Board of Directors. Should
any utility company furnishing a service covered by the general easement herein
provided request a specific easement by separate recordable Document, the Board
of Directors shall have the right to grant such easement on said property without
conflicting with the terms hereof. The easements provided for in this article
shall in no way affect any other recorded easement on said premises.
Section 10.5
Emergency Entry.
In case of any
emergency originating in or threatening any
unit, regardless of whether the Owner
is present at the time of such emergency, the
Board of Directors, or any other
person authorized by it, or the Managing Agent, shall have the right to enter
such Unit for the purpose of remedying or abating the cause of such emergency,
and such right of entry shall be immediate.
Should no key be available for a
unit into which emergency
entry is required, in such time frame as the
Association or its designated representatives
shall in its sole discretion determine, then the Association has the right to
make a forcible entry. The Association shall be held harmless from and not be
liable for any damage caused by or resulting from such forcible entry.
Article 11
Section 11.1
Purpose of Assessments.
The assessments for common expenses as
described in Section 47C-3--115 of the
Condominium Act and as otherwise provided
for in the
Documents shall be used for the general purposes of promoting the recreation,
health, safety, welfare, common benefit, and enjoyment of the Owners and occupants
of
units in the Condominium as may be more specifically authorized from time to
time by the Board.
Section 11.2
Apportionment of Common Expenses.
Except as set forth in this Article, common
expenses shall be assessed against all
units in accordance with the allocation
of percentage interest in the common expenses as set forth in this Declaration
pursuant to Section 47C-2-107(a).
Section 11.3
Common Expenses Attributable to Fewer than All Units.
Section 11.4 Lien for Assessments.[10]
Section 11.5
Computation of Operating Budget and Annual Assessment.
It shall be the
duty of the Board to prepare a budget covering the estimated costs of operating
the Condominium during the coming fiscal year and amounts necessary to provide
working capital, a general operating reserve, and reserves for contingencies and
replacements. The Board shall cause the budget and the annual assessments to be
levied against each
unit for the coming fiscal year. Within 30 days after adoption
of any proposed budget for the condominium, the Board shall provide a summary
of the budget to all
Unit
Owners, and shall set a date for a meeting of the Unit
owners to consider ratification of the budget not less than 14 nor more than 30
days after mailing the summary. There shall be no requirement that a quorum be
present at the meeting. The budget and the assessment established therefrom shall
be ratified unless disapproved at the meeting by a majority of the total
Association
vote. Notwithstanding the foregoing, however, in the event that the membership
disapproves the proposed budget or the Board fails for any reason to so determine
the budget for the succeeding year, then and until such time as a budget shall
have been determined, as provided herein, the budget in effect for the current
year shall continue for the succeeding year.
Section 11.6
Personal Liability of Unit Owners.
The
Unit
Owner
of a
unit at the time any common expense assessment or portion thereof is due
and payable is personally liable for such assessment, for any interest, if applicable,
and for all costs of collection including, but not limited to, reasonable attorney's
fees actually incurred.
The grantee of a Unit
shall be jointly and
severally liable with the grantor Owner
for all unpaid assessments against the
latter for his proportionate share of
the common expenses up to the time of
the grant or conveyance, without prejudice to the grantee's right to recover
from the grantor the amounts paid by the grantee therefor.
Assessments shall be paid in such manner and on such dates
as may be fixed by the
Board of Directors. Unless otherwise provided, the annual
assessment installment payments shall be late and the Unit Owner in default if
not paid on or before the tenth (10th) day such installment becomes due.
Section 11.7
Acceleration.
If the
Unit
Owner shall be in default
in payment of any assessment or charge, including, but not limited to, the regular
installments based on the annual budget, the
Board of Directors may accelerate
the remaining assessments, including regular installments based on the annual
budget, special assessments, and specific assessments, upon ten (10) days written
notice to such Unit Owner whereupon the entire unpaid balance shall become due
and payable upon the date stated in such notice.
Section 11.8
No Waiver of Liability for Common Expenses.
No
Unit
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
unit against which the assessments are made.
Section 11.9
Special Assessments.
Section 11.10
Capital Budget and Contribution.
The
Board of Directors shall annually prepare a capital budget which shall take into account
the number and nature of replaceable assets, the expected life of each asset,
and the expected repair or replacement cost. The Board may set the required capital
contribution, if any, in an amount sufficient to meet the projected capital needs
of the
Association, as shown on the capital budget, with respect both to amount
and timing by equal annual assessments over the period of the budget. The capital
contribution required may be fixed by the Board and included within the budget
and assessment as provided in Section 11.5 of this Article. A copy of the capital
budget shall be distributed to each member in the same manner as the operating
budget.
Section 11.11
Interest, Late Charges, and Payments.
In accordance with N.C. Gen. Stat. 47C-3-115(b),
the
Association hereby establishes that any past due common expense assessment
or installment thereof shall bear interest at the maximum rate allowed by law.
The Board shall set a late charge to be assessed against
Unit
Owners for late payment of any common expense assessments or installment
thereof.
Any payments received by the Association in the discharge
of a Unit Owner's obligation may be applied to the oldest balance due.
Section 11.12
Surplus Funds.
Any surplus funds of the
Association remaining
after payment of or provisions for common expenses and any prepayment shall be
retained in the general operating funds or long range fund of the Association
in the sole discretion of the Board and no such surplus funds shall be paid to
Unit
Owners nor shall such surplus funds be used as a credit to reduce future
common expense assessments.
Article 12
Section 12.1
Association Authority.
The
Association
shall manage and administer the Condominium and shall have all powers and duties
granted to it in the
Condominium Act and the
Documents.
Section 12.2
Association Membership. All
Unit
Owners by virtue of their ownership of
a
unit in the Condominium are members of the Unit Owners'
Association and shall
be entitled to vote on all matters upon which members of the Association are entitled
to vote pursuant to the Declaration and in accordance with the Bylaws. Subject to the provisions of the
Condominium Act and the
Documents, such Owners shall be entitled to one (1) vote for each
Unit in which they hold the interest required for membership.
Section 12.3
Powers and Duties.
Acting by and through its
Board of Directors
and/or its membership in accordance with the provisions of the
Documents, the
Association shall have the powers and duties necessary for the administration
of the affairs of the Condominium which shall include, but not be limited to,
the following:
Section 12.4
Maintenance Responsibility.
The respective maintenance responsibilities,
to include preventive maintenance, of the
Association and the
Unit
Owners shall
be as provided in the
Bylaws.
Section 12.5
Right to Assign Future Income.
The
Association may assign its future
income, including its right to receive and collect common expense assessments,
only by the affirmative vote of Owners of Units to which at least a majority of
the votes in the Association are allocated at a meeting called for that purpose.
Section 12.6
Additions and Alterations by the Board of Directors.
Whenever in the
judgement of the
Board of Directors the
Common Elements shall require additions,
alterations, or improvements costing in excess of Ten Thousand Dollars
($10,000.00) during any period of twelve (12) consecutive months, and the making
of such additions, alterations, or improvements shall have been approved by a
majority of the total votes in the
Association at a special or annual meeting
or by written consent, the Board of Directors shall proceed with such additions,
alterations, or improvements and shall assess all Owners for the cost thereof
as a Common Expense. Any additions, alterations or improvements costing Ten Thousand
Dollars ($10,000.00) or less during any period of twelve (12) consecutive months
may be made by the Board of Directors without approval of the Owners and the cost
thereof shall constitute part of the Common Expense. Notwithstanding the foregoing,
if, in the opinion of not less than 80% of the members of the Board of Directors,
such additions, alterations, or improvements are exclusively or substantially
exclusively for the benefit of the Owner or Owners requesting the same, such requesting
Owners shall be assessed and pay therefore in such proportion as they jointly
approve or, if they are unable to agree thereon, in such proportions as may be
determined by the Board of Directors.
Article 13
In order to assure a community of congenial
resident Owners and thus protect the value of the
units, the sale or leasing of
a Unit by an Owner shall be subject to the following provisions so long as the
Condominium shall be owned in accordance with the terms and conditions of the
Documents and the
Condominium Act:
Section 13.1
Renting or Leasing of Units.
Units may be rented only in their entirety;
no fraction or portion may be rented. No transient tenants shall be permitted.
All leases must be for a term of not less than one (1) year except by written
permission of the
Board of Directors in its sole discretion. No more than
six (6) units can be leased at any one time except in the case of hardship,
which shall be determined by the Board of Directors in its sole discretion.[11] All leases and
lessees are subject to the provisions of the Declaration,
Bylaws, and Rules and
Regulations. The
Unit
Owner must make available to the tenant copies of the Declaration,
Bylaws, and Rules and Regulations. All leases and lessees are subject to the approval
by the Board of Directors which shall not be unreasonably withheld. Unit Owners
must provide the Board with a copy of the proposed lease and arrange for an interview
between the prospective tenant and the Board or its designee, prior to allowing
occupancy of the Unit by a tenant. The Board shall not discriminate against any
prospective tenant on the basis of race, religion, national origin, age, disability,
familial status or for any other unlawful purpose.
"Leasing"
for purposes of this Declaration is defined as regular occupancy
of a
unit by any person other than the Owner for which the Owner
receives any consideration or benefit, including a fee,
service, gratuity, or emolument.
Any lease of a
unit in the Condominium shall he deemed
to contain the following provisions, whether or not expressly therein stated,
and each Owner covenants and agrees that any lease of a Unit shall contain the
following language and agrees that if such language is not incorporated into
a lease such covenants nevertheless apply to the Unit through the existence of
this covenant. Any lessee, by occupancy in a Unit, agrees to the applicability
of this covenant and incorporation of the following language into the lease:
Section 13.2
Notice of Sale or Lease.
Any Owner intending to sell or lease his
or her
unit shall give notice in writing to the
Board of Directors of such intention
at the time the Unit goes under contract and provide such other information as
the Board may reasonably require. Any Owner intending to lease his or her Unit
shall provide to the Board or its designated agent a copy of the signed lease
within fifteen days of the signing of the lease and prior to occupancy. Failure
to provide a copy of the lease will result in the imposition of a fine against
the Owner. The Board of Directors shall have authority to make and to enforce
reasonable rules and regulations in order to enforce this provision, including
the right to impose fines.
Article 14
Except for certain cases of amendments as referenced in
Section 47C-2-I17 (a) of the
Condominium Act, and in those cases whereby this
Declaration requires a greater majority for such an amendment, this Declaration
may be amended only by vote or written agreement of
Unit
Owners of
units to which
at least Sixty Seven Percent (67%) of the votes in the
Association are allocated.
The procedure for amendment shall follow the procedure set forth in Section 47C-2-117
of the Condominium Act. No amendment shall become effective until recorded in
the office of the Register of Deed's in Henderson County, North Carolina.
Article 15
No Owner, occupant, lessee or lessor, or any other person
may make any encroachment onto the
Common Elements, exterior change, alteration,
or construction (including planting or landscaping in any form), nor erect, place,
or post any sign, object, light, or thing on the exterior of the buildings or
any other common element, or on any place or thing in the Condominium visible
from the outside of a
unit, without first obtaining the written approval of the
Board of Directors of the
Association or its designee. The Board may establish
general exceptions to this section in duly adopted Rules and Regulations.
To obtain such permission for any aforementioned change
or alteration, the plans and specifications showing the nature, kind, shape, height,
materials, and location shall have been submitted in writing to the Board or its
designee. The Board or its designee may promulgate written guidelines for the
exercise of the review of such plans. The Board or its designee, in its sole
discretion, may hire an architect or other professional designer to analyze
the plans and specifications to help in the review. Any costs incurred will be
paid for by the
Unit
Owner proposing such plans.
The Board or its designee
shall be the sole arbiter of such plans and may withhold approval for any reason, including purely
aesthetic considerations, and it shall be entitled to stop any construction in
violation of these restrictions. Any member of the Board or its representatives
shall have the right, during reasonable hours, to enter upon any
unit to inspect
any Unit and any improvements thereon for the purpose of ascertaining whether
these restrictive covenants have been or are being complied with. Such person
or persons shall not be deemed guilty of trespass by reason of such entry. In
the event said Board or its designee fails to approve or to disapprove
such design and location within sixty (60) days after
the plans and specifications have been submitted to it, approval will not be required,
and this Section will be deemed
to have been fully complied with. An Owner, on behalf
of himself and his successors-in-interest, shall assume all responsibilities for
maintenance, repair, and replacements and for insurance to and on such
change, modification, addition, or alteration.
Article 16[13]
Section 16.1
Rules Making Authority.
The Condominium shall be used only for those uses and
purposes set out in the Declaration and
Bylaws. The Board of Directors shall have the
authority to make, modify, repeal, and
to enforce reasonable Rules and Regulations governing the conduct,
use, and enjoyment of
units and the
Common Elements, so long as copies of all such Rules and Regulations are furnished to all Owners; provided, however, any
Rule or Regulation may be repealed by
the affirmative vote or written consent of a majority of the total Association vote at an annual or special meeting. No rule or regulation shall
be in conflict with either the Declaration or the Bylaws.
Section 16.2
Abatement and Enjoinment of Violations.
In addition to any other remedies provided for herein, the
Association through the Board shall have the
power to enter upon a
unit or any portion of the
Common Elements
to abate or remove, using such force
as may be reasonably necessary, any erection,
thing, or condition which violates the Declaration,
Bylaws, or Rules and Regulations. Unless an emergency situation
exists, the Board shall give the violating
Unit
Owner ten (10) days written
notice of its intent to exercise such abatement and an opportunity to be heard.
All costs of abatement, including reasonable attorney's fees actually incurred,
shall be assessed against the violating Unit Owner and shall be collected as
provided for herein for the collection of assessments. Additionally, the Association through the Board shall have
the power to enjoin or to remedy by appropriate legal proceeding, either at law
or in equity, the continuance of any violation of the Declaration, Bylaws, or
Rules and Regulations. All costs of any such legal action, including reasonable
attorney's fees actually incurred, shall be assessed against the violating Unit
Owner and shall be collected as provided for herein for the collection of assessments.
Article 17
Termination Termination of the Condominium shall be accomplished only
in accordance with Section 47C-2-118 of the
Condominium Act.
Article 19
Section 19.1
Captions.
The captions contained in the
Documents are inserted
only as a matter of convenience and for reference, and in no way define, limit
or describe the scope of the Documents nor the intent of any provision thereof.
Section 19.2
Gender.
The use of the masculine gender refers
to the feminine and neuter genders and the use of the singular includes the plural,
and vice versa, whenever the context of the
Documents so requires.
Section 19.3
Waiver.
No provision contained in the
Documents
is abrogated or waived by reason of any failure to enforce the same, irrespective
of the number of violations or breaches which may occur.
Section 19.4
Invalidity.
The
invalidity of any provision of the
Documents does not impair or affect in any
manner the validity, enforceability or effect of the remainder, and in such event,
all of the other provisions of the Documents shall continue in full force and
effect.
Section 19.5
Conflict.
The
Documents are intended to comply with
the requirements of the
Condominium Act and Chapter 55-A of the North Carolina
General Statutes. In the event of any conflict between the Documents and the provisions
of the statutes, the provisions of the statutes shall control. In the event of
any conflict between this Declaration and any other Document, this Declaration
shall control.
Section 19.6
Preparer.
This Declaration was prepared by James M. Lloyd, Robert
E. Dungan P.A., 33 Page Avenue, Suite 200, Asheville, North Carolina 28801.
Section 19.7
Service of Process.
The person to receive service of process
shall at all times be the registered agent of the
Association as set forth in
the Articles of Incorporation or as may be changed from time to time by filing
the appropriate change of registered agent form with the North Carolina Secretary
of State.
Article 20[15]
Section 20.1 Association Upkeep of Common Elements.
Other than the Upkeep of
Limited Common Elements required by the
Owner, the
Association shall be responsible for the Upkeep of
the
Common Elements, and all conduits, ducts, plumbing, wiring
and other facilities located in the Common Elements or in a
Unit
for the furnishing of utility and/or other services to the
Common Elements or other Units.
Section 20.2 Maintenance Standard.
The minimum standard for Upkeep of the
Common Elements to be
performed by the
Association shall be determined, from time to
time, by the Board
of
Directors in its sole discretion.
If any incidental
damage
is caused to any
Unit by virtue of any work which may be done or
caused to be done by the Association in the Upkeep of any Common
Elements, the Association shall, at its expense, repair such
incidental damage.
Section 20.3 Damage Caused by Owner.
Whenever the Upkeep of any item for which the
Association is
obligated to perform at its expense is occasioned by any act of
an
Owner, his tenants, guests or invitees, and such loss or
damage may be covered by any insurance maintained in force by
the Association, the proceeds
of
the insurance received by the Association shall be used for the
purpose of such Upkeep, except that
the
Owner who is responsible for the act causing the damage (whether
done by himself or his tenants, guests or invitees) shall be
required to pay such portion of the cost of such Upkeep as
shall, by reason of the applicability of any deductibility
provision of such insurance, exceed the amount of the insurance
proceeds applicable to such Upkeep.
Whenever the Upkeep of any item for which the Association is
obligated to maintain, replace or repair at its expense is
occasioned by an act of an Owner, his tenants, guests or
invitees, and such loss or damage is not covered by any
insurance maintained in force by the Association, the Owner who
is responsible for the act causing the damage (whether done by
himself or his tenants, guests or invitees) shall be required to
pay
the
cost of such Upkeep. Section 20.4 Liability for Damage. Establishment of liability for damage caused by the Owner of a Unit or the Association is subject to the provisions of N.C. Gen. Stat. § 47C‑3‑107(d).
Article 21[16]
Section 21.1 Owner Upkeep of Units.
Every
Owner shall perform promptly all
Upkeep within his
Unit which, if omitted, would affect the Condominium, either in its
entirety or in a part belonging to other Owners, or adversely
impair the ability to rent such Owner's Unit or any other Unit,
and every Owner shall be expressly
responsible
for the damages and liability which his failure to do so may
engender. The Owner
of each Unit shall
be liable and responsible for the Upkeep of all portions of
their Unit set forth in Article 4, including, without
limitation, air conditioning and heating equipment, fans or
other appliances or equipment, including any fixtures and/or
their connections required to provide water, light, power,
telephone, sewage and sanitary service solely to his Unit.
Such Owner further shall be responsible and liable for
the Upkeep of the surfaces of any and all walls, ceilings and
floors in the interior of his Unit including painting,
decorating and furnishings, and all other accessories in his
Unit.
Section 21.2 Maintenance-Insurance
Proceeds.
Whenever the Upkeep of any item for which the
Owner of a
Unit is
obligated to perform at his own expense is occasioned by any
loss or damage which may be covered by any insurance
maintained
in force by the
Association, the proceeds of the insurance
received
by the Association shall be used for the purpose of performing
such Upkeep, except that the Owner of such Unit shall be, in
said instance, required to pay such portion of the costs of such
Upkeep as shall, by reason of the applicability of any
deductibility provision
of such insurance, exceed the amount of the insurance
proceeds applicable to such Upkeep.
Section 21.3 Limited Common Elements.
Except as otherwise stated herein, all betterments and
improvements added to the
Limited Common Elements by the
Owners
are a part of the respective
Units
and shall be maintained by
the respective Owners.
The cost of Upkeep of the Limited Common Elements shall be paid
by the Owners to whom the exclusive right to use the Limited
Common Elements are allocated.
Notwithstanding
this Section, the Board may, in its reasonable discretion,
designate the cost of Upkeep of Limited Common Elements as a
Common Expense when said Upkeep is required pursuant to a common
plan for the overall Upkeep of the
Common Elements.
Article 22[17]
Section 22.1 General Remedies.
Every
Owner and any occupant of any
Unit shall comply with the
Association
Documents and the Act.
Failure to
comply
shall be grounds for an action by the Association to recover
sums due, for damages, injunctive relief or any other remedy
available at law and equity or under the Act.
Section 22.2 Enforcement/Sanctions.
The Board or such other
Association agent with the Board's
approval, may impose sanctions for violations of
Association
Documents after notice and a hearing in accordance with the
procedures set forth in the Act and Section 22.3 of this
Declaration. Such
sanctions may include, without limitation:
Imposing reasonable monetary fines which shall constitute a lien
upon the
Unit of the violator;
Suspending an
Owner's right to vote;
Suspending any Person's right to use any facilities within the
Common Elements; provided, however, nothing herein shall
authorize the Board to limit ingress or egress to or from the
Unit; and
Suspending any services provided by the Association to an Owner
or the Owner's Unit if the Owner is more than thirty (30) days
delinquent in paying any assessment or other charge owed to the
Association.
Section 22.3 Hearing Procedures.
Except as may be otherwise specifically authorized by the
Association
Documents, and permitted by the Association
Documents, the Board shall not (i) impose a fine or penalty,
(ii) undertake permitted
remedial
action, or (iii) suspend voting or infringe upon other
rights
of a Member or other occupant of a Lot or
Unit for violations of
the Association Documents, or for assessments or other amounts
due and owing to the Association remaining unpaid for a period
of thirty (30) days, or longer, unless and until the following
procedure is completed:
Notice.
The Board, or an adjudicatory panel
appointed by the Board, shall serve the Owner or Occupant of a
Unit alleged to have violated the Association Documents or the
Act (the "Responsible Person") with a written notice of a
hearing to be held by the Board of the Association in executive
session, or before an adjudicatory panel appointed by the Board;
provided, however, that any adjudicatory panel appointed by the
Board shall be composed of members of the Association who are
not officers of the Association or members of the Board.
The notice shall contain: (i) the
nature of the alleged violation; (ii) the time and place of the
hearing, which shall not be less than ten (10) days from the
giving of the notice; (iii) an invitation to attend the meeting
and produce any statement, evidence and witness on behalf of the
Responsible Person; and (iv) the proposed sanction to be
imposed.
The notice prescribed herein may be
served by mailing a copy of said notice to the Responsible
Person by placing said notice in the United States mail, postage
prepaid, by any method as permitted for the service of summons
as set forth in Rule 4 of the North Carolina Rules of Civil
Procedure or by the delivery of said notice by an officer,
director or agent of the Association to the Responsible Person
or to any person who may be served on the Responsible Person's
behalf as provided in said Rule 4.
Hearing.
The hearing shall be held in
executive session of the Board or an adjudicatory panel
appointed by the Board pursuant to the notice affording the
member a reasonable opportunity to be heard.
Any adjudicatory panel appointed by
the Board shall be composed of Members who are not officers of
the Association or members of the Board.
Prior to the effectiveness of any
sanction hereunder, proof of notice and the invitation to be
heard shall be placed in the minutes of the meeting.
Such proof shall be deemed adequate
if a copy of the notice, together with a statement of the date
and manner of deliver, is entered by the officer, director, or
agent who delivered such notice.
The notice requirement shall be
deemed satisfied if the Responsible Person appears at the
meeting.
The minutes of the meeting shall
contain a written statement of the results of the hearing and
the sanction, if any, imposed.
In addition, a written statement of
the results of the hearing and the sanction, if any, imposed
shall be mailed by the United States mail, postage prepaid, by
the Association to the violator.
Appeal.
If the hearing is held before an
adjudicatory panel, following such hearing and notice of a
decision adverse to the violator, the Responsible Person shall
have the right to appeal the decision to the Board.
To perfect this right, a written
notice of appeal must be received by the managing agent of the
Association, President or Secretary of the Association within
fifteen (15) days after the date of the decision, said written
notice to contain information by which the Board may notify the
Responsible Person of the date of the appeal hearing.
If no adjudicatory panel is
appointed by the Board, no right of appeal shall exist.
Sanction as Assessment.
Pursuant to the provisions of this
Section, a fine may be imposed by the Association is an amount
not exceeding One Hundred and No/100 Dollars ($100.00) (or any
greater amount as may be provided otherwise by law or the Act)
per violation of the Association Documents and without further
hearing, for each day more than five (5) days after the decision
to impose such fine that the violation occurs.
Any such fine shall be an
assessment as set forth in this Declaration and the Act.
If it is decided pursuant to the
provisions of this Section that a suspension of privileges or
services should be imposed, the suspension may be continued
without further hearing until the violation or delinquency is
cured.
Section 22.4 Self Help Remedies.
In addition to other rights set forth in the
Association
Documents and the Act, upon violation or breach of any provision
of the Association Documents, the Board shall have the right:
(i) to enter a
Unit or
Limited Common Element appurtenant
thereto, on which or as to which such violation or breach exists
and summarily to abate and remove, at the expense of the
defaulting
Owner, any structure, thing or condition that may
exist therein contrary to the intent and meaning of the
provisions of the Association Documents, and the Board shall not
thereby be deemed guilty in any manner of trespass, (ii) to use
self‑help to remove or cure any violation of the Association
Documents (including, without limitation, the towing of
vehicles); or (iii) to enjoin, abate or remedy by appropriate
legal proceedings, either at law or in equity, the continuance
of any such
breach; provided, however, that before any construction or
improvements may be altered or demolished, except in
emergencies, judicial proceedings shall be instituted by the
Association against such defaulting Owner or its tenant.
Section 22.5 Cumulative
Remedies/Attorneys' Fees.
The
Association shall have all powers and remedies under the Act
and the Association
Documents which shall be cumulative of any
remedies available at law or in equity.
In any action to
enforce
the provisions of the Association Documents, if the
Association
prevails, it shall be entitled to recover all costs, including,
without limitation, attorneys' fees and court costs, reasonably
incurred in such action.
Section 22.6 Association's Right Not to
Take Action.
The
Association shall not be obligated to pursue enforcement
action in any particular case, such decisions to be within the
discretion of the Board, except that the Board shall not be
arbitrary or capricious in taking enforcement action.
Without limiting the generality of the foregoing, the
Board may determine that, under the circumstances of a
particular case:
(a) the Association's
position
is not strong enough to justify taking any or further action; or
(b) the covenant, restriction or rule being enforced is, or is
likely to be construed as, inconsistent with applicable law; or
(c) although a technical violation may exist or may have
occurred, it is not of such a material nature as to be
objectionable to a reasonable person or justify expending
Association funds; or, (d) it is not in the best interest of the
Association, based upon hardship, expense or other reasonable
criteria, to pursue enforcement action.
Such a decision shall not be construed a waiver of the right of
the Association to enforce such covenant, restriction, rule or
provision at a later time under other circumstances or preclude
the Association from enforcing any other covenant, restriction,
rule or provision, nor shall it preclude any
Owner from taking
action at law or in equity to
enforce
the Association
Documents.
Section 22.7 Enforcement by Owner.
Nothing set forth in this Article shall
prevent any aggrieved
Owner from instituting any available
remedy in law or in equity for a violation of the Association
Documents.
[1] Every effort has been made to guarantee that this on-line version of the Declaration is a faithful reproduction of the printed version. If any substantive difference between the two should exist, it is the printed version that is authoritative. [2] In the printed version the references appear prior to the printing of the Declaration. These references are: STATE OF NORTH CAROLINA, COUNTY OF HENDERSON, References: DB 622/751, DB 641/563, DB 645/503, DB 656/435, DB 665/152, DB 669/309, DB 673/249, DB 680/303, DB 686/127, DB 695/759, DB 698/793, DB 708/274, DB 736/693, DB 747/687, DB 770/712, DB 880/461, DB 905/531, DB 941/252. [3] In the printed version the Bylaws appear as an attachment; in this on-line version the Bylaws are presented as a separate document, accessible via the link in the menu to the left. [4] In the printed version the Articles of Incorporation appear as an attachment labelled "Exhibit B"; in this on-line version they appear in the "Redbook Overview". [5] In the printed version the Recital precedes the Declaration; in this on-line version, the Recital appears in its entirety below.
[6]
Section 3.24 was added by amendment, by vote of
the Unit Owners at the September 12, 2016, Annual Meeting. [7] Section 7.15 appears as amended on 6/13/2007. [8] Article 8 was amended by substitution of this new article, by vote of the Unit Owners at the September 12, 2016, Annual Meeting. [9] Article 9 was amended by substitution of this new article, by vote of the Unit Owners at the September 12, 2016, Annual Meeting.
[10] Section
11.4 appears as amended on 6/13/2007.
[11]
This sentence was revised on 9/15/1998 by first
amendment to this Declaration. [12] In the printed version the Lease Agreement appears as an attachment labelled "Exhibit C"; in this on-line version the Lease Agreement is presented as a separate document, accessible via the link in the menu to the left.
[13]
Article 16 was amended by deletion of the former
Section 16.2, “Fining Powers”, by vote of the owners at the Annual
Meeting of September 12, 2016; the substance now appears in Article 22.
Section 16.3 was renumbered as Section 16.2. [14] This reference is erroneous. Article VIII of the Bylaws was amended by deletion, by vote of the Unit Owners at the September 12, 2016, Annual Meeting, and the content relocated and restated in Article 22 of this Declaration. The reference was not corrected at that time.
[15]
Article 20 was added by amendment, by
vote of the Unit Owners at the September 12, 2016, Annual
Meeting. The content replaces content previously
included in the Bylaws, Article VII.
[16]
Article 21 was added by amendment,
by
vote of the Unit Owners at the September 12, 2016, Annual
Meeting.
The content replaces content previously included in the
Bylaws, Article VII.
[17]
Article 22 was added
by amendment, by
vote of the Unit Owners at the September 12, 2016, Annual
Meeting.
The content replaces content previously included in the
Bylaws, Article VIII. RECITAL [See footnote #5 above.] WHEREAS, FLEETWOOD PROPERTIES, INC., by means of that Declaration Creating Ownership and Establishing Restrictions, Covenants, and Conditions for Fleetwood Plaza Condominiums, recorded in Deed Book 622 at page 751, et seq., of the Henderson County Registry of Deeds (hereinafter referred to as the "Original Declaration"), did create FLEETWOOD PLAZA CONDOMINIUMS; and
WHEREAS,
Fleetwood Properties, Inc., did by means of the Original
Declaration, reserve the right to add certain properties
described in Exhibit A of the Original Declaration to Fleetwood
Plaza Consominiums; and
WHEREAS,
Fleetwood Properties, Inc., did add certain properties to
Fleetwood Plaza Condominiums by means of eleven (11) Supplements
to the Original Declaration recorded in Deed Book 641 at page
563, in Deed Book 645 at page 503, in Deed Book 656 at page 435,
in Deed Book 665 at page 152, in Deed Book 669 at page 309, in
Deed Book 673 at page 249, in Deed Book 680 at page 303, in Deed
Book 686 at page 127, in Deed Book 695 at page 759, in Deed Book
698 at page 793, and in Deed Book 708 at page 274 of the
Henderson County Registry of Deeds; and
WHEREAS,
by means of that Supplement Number Eleven to the Original
Declaratgion, recorded in Deed Book 708 at page 274 of the
Henderson County Registry of Deeds, Fleetwood Properties, Inc.,
did complete Fleetwood Plaza Condominiums, consisting of 63
Units and Common Elements, by submitting the remainder of the
property described in Exhibit A of the Original Declaration to
Fleetwood Plaza Condominium which Fleetwood Properties, Inc.,
had reserved the right to submit pursuant to the Original
Declaration; and
WHEREAS,
pursuant to Article VI of the Original Declaration, FLEETWOOD
PLAZA REGIME, a North Carolina non-profit corporation whose
membership is limited to and consists of all owners of Units in
Fleetwood Plaza Condominiums (hereinafter referred to as the
Regime or Association), was established to administer the
condominum property; and
WHEREAS,
Article XIII, Paragraph 1, of the Original Declaration provided
a process by which the owners of Units in Fleetwood Plaza could
amend the Original Declaration and the Original Declaration has
been duly amended by those four instruments recorded in Deed
Book 747 at page 687, in Deed Book 770 at page 712, in Deed Book
880 at page 461, and in Deed Book 905 at page 531 in the
Henderson County Registry of Deeds; and
WHEREAS,
the Original Declaration and Bylaws, as amended by that
instrument recorded in Deed Book 770 at page 712 in the
Henderson County Registry of Deeds, may be amended by the vote
of the unit owners holding a majority of the percentage
interest, provided that such amendment shall become effective
only when a certificate, duly executed and acknowledged by the
President of the Regime, certifying to such amendment shall have
been duly recorded in the office of the Register of Deeds for
Henderson County, North Carolina; and WHEREAS, a majority of the unit owners voted at the December 10, 1997, special meeting of the Regime to amend and restate the Original Declaration and Bylaws as is hereby done for the purpose of submitting Fleetwood Plaza Condomium to N. C. Gen. Stat. § 47C-1-102, et seq., the North Carolina Condominium Act, and to incorporate all previous amendments and supplements to the Original Declaration into one unified document; NOW THEREFORE, the Original Declaration as amended including eleven supplements referenced above and the Original Bylaws as amended are now amended by striking them in their entireties except for the purpose of preserving legal descriptions and the whole of the Concominium Property as found in the orginal Declaration and supplements and by simultaneously substituting therefore the following Amended and Restated Declaration and Bylaws by which the Condomin ium Property shall be governed. These Amended and Restated Declaration and Bylows were recorded in Deed Book 941 at page 752 in the Henderson County Registry of Deeds. WHEREAS, a majority of the unit owners voted at the September 10, 2001, annual meeting of the Regime to amend and restate the amended Declaration to revise Article 8 which involved Insurance, the Board has ordered these amendments be recorded in the Henderson County Registry of Deeds. |
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