ETOWAH'S
REACH PROPERTY OWNERS ASSOCIATION
DECLARATION
for ETOWAH’S REACH
A Planned Community in Henderson County, North Carolina
THIS DOCUMENT REGULATES OR PROHIBITS THE DISPLAY OF
POLITICAL SIGNS
Replaces the Declaration Dated August 2004 (Deed Book 1195, Page 640)
which
replaced the Declaration Dated May 1991 and its Amendment Dated May
1992 (Deed
Book 775, Page 351 and Deed Book 798, Page 826 Respectively
September 2008
This website copy may not be as
current as the official version adopted by the Board of Directors of
the Etowah's Reach Property Owners Association and which can be viewed
by contacting the Secretary of the Association.
Board actions will change the Declaration from time to time
and such official changes will not be immediately incorporated
into this website copy.
|
CONTENTS
1. Etowah’s
Reach Planned Community
2. Description
of Etowah’s Reach
Section
2.1 Name
Section
2.2 Location
Section
2.3 Composition
3. Lots
Section
3.1 Lot Descriptions
Section
3.2 Allocated Interests
4. Common Elements
Section
4.1 Common Elements
Section
4.2 Conveyance or Encumbrance
Section
4.3 Use
Section
4.4 Restrictions
5. Association
of Lot Owners
Section
5.1 Association Authority
Section
5.2 Association Membership
Section
5.3 Powers and Duties
6. Use Restrictions and
Purpose
Section
6.1 Restrictions in General
Section
6.2 Residential
Section
6.3 Business Activities
Section
6.4 Construction
Section
6.5 Vehicles
Section
6.6 Animals
Section
6.7 Subdividing
Section
6.8 Nuisances
Section
6.9 Lawful Use
Section 6.10 Rules and
Regulations
Section 6.11 Leasing
Section 6.12
Time-Sharing
Section 6.13 Water Flow
Section 6.14 Political Signs
7. Insurance
Section 7.1
Coverage
8. Damage,
Repair, and Reconstruction of Common
Elements
Section
8.1 Duty to Repair
Section
8.2 Repair and Reconstruction
9. Easements
and Additional Rights
Section
9.1 Enjoyment of Common Elements
Section
9.2 Utility Easements
10. Assessment
and Collection of Common Expenses
Section 10.1 Purpose
of Assessments
Section 10.2
Apportionment of Expenses
Section 10.3 Expenses
Attributable to Fewer than All Lots
Section 10.4 Lien for
Assessments
Section 10.5 Annual
Assessment
Section 10.6 Personal
Liability of Lot Owners
Section 10.7 Liability
for Common Expenses
Section 10.8 Special
Assessments
11. Fiscal Responsibility
12. Leases and Sales
Section 12.1 Renting
or Leasing of a Residence
Section 12.2 Sale of
Residence
13. Architectural
Standards and Controls
Section 13.1 Dwelling
Type
Section 13.2 Dwelling
Height
Section 13.3 Dwelling
Appearance
Section 13.4 Dwelling
Exterior
Section 13.5 Dwelling
Location
Section 13.6 Antennas
Section 13.7 Approval
Section 13.8 Solar
Collectors
14. Maintenance Responsibility
Section 14.1 By the
Association
Section 14.2
Restrictions on Lot Owners
Section 14.3
Responsibility for Damages
Section 14.4 Insurance
Deductibles
15. Enforcement Procedures
Section 15.1 Violation
Identification
Section 15.2 Hearing
Section 15.3 Demand
Section 15.4 Sanction
16. Condemnation
17. Miscellaneous Provisions
Section 17.1 Gender
Section 17.2 Captions
Section 17.3 Waiver
Section 17.4 Invalidity
Section 17.5 Conflict
Section 17.6 Disputes
Section 17.7
Grandfathering
Section 17.8 Appeals
18. Amendments
19. Renewal and Termination
20. Definitions
Section 20.1
Declaration
Section 20.2
Bylaws
Section 20.3
Documents
Section 20.4
Association
Section 20.5
Board
Section 20.6 Agenda
Section 20.7 Voting
Quorum
Section 20.8
Ballot
Section 20.9 Voting
Section 20.10 Eligible Voter
Section 20.11 Lot
Section 20.12 Lot Owner
Section 20.13 Association
Member
Section 20.14 Renter
Section 20.15 Common Expenses
Section 20.16 Operating
Budget
Section 20.17 Capital Budget
Section 20.18 Operating Fund
Section 20.19 Reserve Fund
Section 20.20 Contingency
Section 20.21 Assessments
Section 20.22 Reasonable
Attorneys’ Fees
Section 20.23 Political Sign
Appendix A. North
Carolina Planned Community Act
Appendix B. Description
of the Property Known
as Etowah’s Reach
Article 1
Etowah’s Reach Planned
Community
Etowah’s Reach, a Planned Community, shall not be bound by the
provisions of the North Carolina Planned Community Act (N.C. Gen.
Stat., Chapter 47F) in its entirety nor shall Etowah’s Reach be bound
by Section 47F-3-107.1. As required by the North
Carolina Planned Community Act for planned communities formed prior to
January 1, 1999, Etowah’s Reach will be governed by Sections: G.S.
47F-3-102 “Powers of owners’ association” (1) through (6) and (11)
through (17); G.S. 47F-3-107 “Upkeep of
planned community; responsibility and assessments for damages” (a),
(b), and (c), G.S. 47F-3-115 “Assessments for common expenses”, and
G.S. 47F-3-116 “Lien for assessments”. The full text of these Sections
are in Appendix A.
Article 2
Description of Etowah’s
Reach
Section 2.1 Name. The name of the Planned Community is
Etowah’s Reach.
Section 2.2 Location. Etowah’s Reach is located in
Henderson County, North Carolina. Metes and bounds, descriptions,
constituting Etowah’s Reach are in Appendix B, which is the same
description attached to the Original Declaration recorded in Deed Book
707 at Page 321 of the Henderson County Registry of Deeds. It is
also the real property depicted on plats recorded in Plat Cabinet A at
Slide 309A and Slide 310 of the Henderson County Registry.
Section 2.3 Composition. Etowah’s Reach is made up of
ninety-eight separate lots plus common elements which are for the use
and enjoyment of lot owners.
Section 3.1 Lot Descriptions. There are ninety-eight (98)
separate Lots in Etowah’s Reach. These Lots are shown and
described on plats recorded in the Henderson County Registry and
particularly described in the deeds of individual lot owners.
Section 3.2 Allocated Interests. The allocated interest in
the common expense liability of and votes in the Etowah’s Reach
Property Owners Association, Inc. for each Lot is equal. There
are ninety-eight (98) Lots, so the interest of each Lot is 1.0204
percent. Common expenses shall be shared by Lot Owners on the basis of
the allocated interest of each Lot. Each Lot shall have one (1)
vote on every matter for which a vote of the membership of the
Association is required by the Documents.
Article 4
Common Elements
Section 4.1 Common Elements. Common Elements are the
properties and facilities in Etowah’s Reach owned by the Association.
Section 4.2 Conveyance or Encumbrance. The Common Elements
shall be neither encumbered nor conveyed except as provided in this
Declaration, the Bylaws, and Section 47F-3-115 of the Planned Community
Act.
Section 4.3 Use. Each owner of a Lot shall have an easement
over and 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 owners of other Lots. 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 put into effect rules and regulations limiting the use of
some or all of the Common Elements and to put into effect rules and
regulations to provide for the exclusive use of a part of the Common
Elements for special occasions, which exclusive use may be conditioned
upon, among other things, payment of a fee. Any lot owner may delegate,
in accordance with the provisions of this Declaration, the Bylaws, and
Rules and Regulations, the right to use the Common Elements to
immediate family members living on the Lot, to a limited number of
guests, or to tenants who reside on the Lot.
Section 4.4 Restrictions.
(a) Construction. Construction on and
making structural alterations or modifications, excluding emergency
repairs and replacement, to any of the Common Elements requires
Association approval. This approval is described in Article 10,
Section 10.8 of this Declaration.
(b) Prohibitions.
(1) The Common Elements shall not
be used for temporary or permanent storage of supplies, personal
property, trash, or refuse of any kind.
(2) No activities shall take place on the Common Elements, if
such activities should despoil, or tend to despoil, the appearance of
Etowah’s Reach.
(c) Ownership Restrictions. The Association shall not abandon,
partition, partition proceeding, subdivide, sell or transfer any
portion of the Common Elements unless the Association is terminated in
accordance with Article 19 of this Declaration.
Article 5
Association of Lot Owners
Section 5.1 Association Authority. The Association shall manage
and administer the affairs of Etowah’s Reach and shall have all powers
and duties granted to it in the Documents (Documents are defined
in Article 20, Section 20.3).
Section 5.2 Powers and Duties. The Association shall have
the powers and duties necessary for the administration of the affairs
of Etowah’s Reach which shall include, but not be limited to, those
described in Section 47F-3-102 (1) through (6) and (11) through (17) of
the Planned Community Act.
Article 6
Use Restrictions
Section 6.1 Restrictions in General. The Lots and Common Elements of
the Etowah’s Reach 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. The acceptance of a deed or the
exercise of any incident of ownership or the entering into a lease or
the entering into occupancy of a Lot constitutes agreement that the
provisions of the Declaration, Bylaws, and Rules and Regulations are
accepted by and are binding on all Lot Owners and their families,
renters, and guests.
Section 6.2 Residential. Each of the Lots in the Etowah’s Reach
shall be restricted exclusively to single-family residential use and
shall be occupied only by a single family, its nurses, aides, servants,
or caretakers, and guests.
Section 6.3 Business Activities. The Lots and Common
Elements of Etowah’s Reach shall not be used in any way or for any
purpose which may endanger the health of or unreasonably disturb the
owner of any Lot or any resident thereof. The Board shall, in its
sole discretion, determine what constitutes business activity, health
hazard, or unreasonable disturbance.
Section 6.4 Construction. There shall not be erected on any
Lot an addition to a dwelling, a detached structure, or a replacement
structure except in accordance with Article 13 of this Declaration.
Section 6.5 Vehicles.
(a) Self propelled and towed licensed and unlicensed vehicles such as
recreational vehicles, motor homes, conversion vans, campers, ATVs,
utility trailers, boats, boat trailers, and similar vehicles must be
stored in a garage behind closed doors. These vehicles may be parked
outdoors on the LOT for loading, unloading, and minor maintenance for
up to seventy-two (72) hours without approval of the Board, but not
more frequently than three such periods per month. The parking area in
front of the Clubhouse can be used as an alternative parking area with
prior Board approval.
(b). Vehicles used by the Lot owner or family members, or house guests
for obvious commercial purposes as indicated by words or symbols on the
vehicles or visible equipment must be parked overnight behind closed
garage doors.
Section 6.6 Animals. Only domesticated indoor pets may be
kept in Etowah’s Reach. Pets may not be commercially bred. Pets 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. Whenever such pet
leaves the lot, then the pet must be restrained by a leash and any
animal droppings which occur during such time must be immediately
collected by the owner. Felines are an exception to the preceding
‘pets must be restrained by a leash’ condition, however, when outside
the residence, felines must wear a collar fitted with an audible bell.
Service animals for persons with disabilities are the exception.
Section 6.7 Subdividing. No Lot may be divided or
subdivided into smaller lots, nor any portion thereof sold or otherwise
transferred.
Section 6.8 Nuisances. No nuisances shall be allowed in
Etowah’s Reach and no person shall engage in any use, practice, or
activity upon such Lot which is noxious, offensive, or a source of
annoyance to owners and occupants of other Lots or which reasonably
interferes with the peaceful possession and proper use of any
Lot. All parts of Etowah’s Reach shall be kept in a clean and non
hazardous condition. Any lot owner (or his family, tenants,
guests or agents) who dumps or places trash or debris upon any portion
of Etowah’s Reach shall be liable for its removal and damage correction.
Section 6.9 Lawful Use. No immoral, improper, or unlawful
use shall be made of Etowah’s Reach nor any part thereof. All
valid laws, zoning ordinances, and regulations of governmental bodies
having jurisdiction thereof shall be observed.
Section 6.10 Rules and Regulations. The Board may from time
to time put into effect reasonable rules and regulations consistent
with the covenants set out in this Article. Such rules and
regulations shall not weaken or amend the covenants. Rules and
regulations shall be binding upon owners and occupants of all Lots
until canceled or modified at an annual or a special association
meeting. Canceling or modifying requires a quorum of sixty-nine
(69) eligible voters and a minimum of fifty-two (52) affirmative votes.
Such rules and regulations shall be enforced by the Board in accordance
with the Declaration and By-Laws to include, but not be limited to, the
imposition of penalties.
Section 6.11 Leasing. Leasing of a house on any Lot shall
be conducted as set forth in Article 12 of this Declaration.
Section 6.12 Time-Sharing. Time-sharing and time
shares in Etowah’s Reach and any activity defined by G.S. 47A
“Unit Ownership” is prohibited.
Section 6.13 Water Flow. The control of water flow by way
of inlets, culverts, ditches, swales, surface gradients, and the like
that were provided during the development of Etowah’s Reach shall not
be altered in any manner which will cause such water to be unnaturally
retained on an adjacent lot or which will cause water to flow on to an
adjacent lot at a different place or in a different manner. Lot
owners may alter the existing control of water flow only when
affected lot owners fully agree on the alteration and only when it can
be guaranteed that the alteration will not change the situations on
streets and lots upstream and downstream from their lots.
Etowah’s Reach is not in a flood plain.
Section 6.14 Political Signs. A single rectangular political sign with
maximum dimensions of 24 inches by 24 inches may be placed on the lot
providing it is not displayed earlier than 45 days before the day of
the applicable election and later than 7 days after the applicable
election day. Political signs of any type shall not be displayed at any
time in any window or on the exterior of any residence.
Section 7.1 Coverage. The Association shall obtain and
maintain insurance coverage as a common expense for, but not limited
to, damage and destruction to common elements and structures thereon
and legal liabilities of the Association and its representatives.
Article 8
Damage, Repair and
Reconstruction of Common Elements
Section 8.1 Duty to Repair. In the event that all or any
part of the Common Elements of Etowah’s Reach shall be damaged or
destroyed, the common elements shall be repaired or replaced and
proceeds of insurance shall be used for that purpose.
Section 8.2 Repair and Reconstruction. The Board or its
duly authorized agents shall arrange for the prompt repair and
reconstruction of all damaged Common Elements and structures
thereon. The procedure for repair and construction shall be as
follows:
(a) Cost Estimates.
Immediately after a fire or other casualty causing damage to the common
elements, the Board shall obtain reliable and detailed estimates of the
cost of repairing and restoring any structures to a condition as good
as that existing before such casualty. Such costs may also
include professional fees and premiums for such bonds as the Board
determines to be necessary. Any contract awarded to a contractor
shall require that the contractor be licensed, be bonded, and have
liability insurance.
(b) Source and Allocation of Proceeds. If the proceeds of
insurance are not sufficient to defray the said estimated costs of
reconstruction and repair, or if at any time during the reconstruction
and repair or upon completion of reconstruction and repair the funds
for the payment of the costs thereof are insufficient, the Association
may elect to use available monies in the Reserve Funds provided
replacement is accomplished one (1) year prior to when the obligated
reserve fund monies are needed. If borrowing from the Reserve
Funds does not provide sufficient monies, assessments shall be made
against all Lots. Such assessments require Association approval. This
approval requires a quorum of eighty (80) eligible voters and a minimum
of sixty-six (66) affirmative votes. If, after repair and
reconstruction is completed, there is a surplus of funds, such funds
shall be returned to the lot owners who were assessed.
(c) Reconstruction Fund. The net proceeds of the insurance
collected on account of a casualty and the funds from assessments shall
constitute a reconstruction fund which shall be disbursed in payment of
the cost of reconstruction and repair in the manner set forth in this
Section.
(d) Method of Disbursement. The reconstruction fund shall
be disbursed by the Board in appropriate progress payments to such
contractor(s) performing the work or supplying materials or services
for the repair and reconstruction of the buildings and grounds. All
contracts shall include lien waivers.
Article 9
Easements and Additional
Rights
Section 9.1 Enjoyment of Common Elements. Every owner of a
Lot shall have a right and easement of enjoyment in, to and over the
Common Elements, and the easement granted herein shall be an addition
to and shall pass with the title to every Lot, subject to the following
provisions:
(a) The right of the Association to
suspend the voting rights and rights to use of the Common Elements by
an owner of a Lot for any period during which any assessment against
that Lot remains unpaid for a period of sixty (60) days or more or for
any infraction of its published rules and regulations ( Appendix A,
Section 47F-03-102, Items 11&12);
(b) The right of the Association to limit the number of guests on the
Common Elements;
(c) The right of the Association to determine the time and manner of
use of the Common Elements by owners of Lots.
(d) If the owner of a Lot leases his/her residence, that 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. That owner, shall during the term of such lease, have
no rights to the use of the Common Elements unless invited as a
guest.
Section 9.2 Utility Easements. Should any utility company request
a specific easement on the Common Elements, the Board, with guidance
from the members of Association, shall have the right to grant such
easement.
Article 10
Assessment and
Collection of Common Expenses
Section 10.1 Purpose of Assessments. The assessments for common
expenses shall be for those common expenses as described in Section
47F-3-115 of the Planned Community Act and as otherwise provided for in
the Documents.
Section 10.2 Apportionment of Expenses. Except as set forth
in this Article, common expenses of the Association shall be assessed
against all Lots in accordance with the allocated interests in the
common expenses as set forth in this Declaration.
Section 10.3 Expenses Attributable to Fewer than All Lots.
(a) If any common expense is caused by
the negligence or misconduct of any lot owner(s) or lot occupant(s),
the Association may assess that expense exclusively against those
Lot(s).
(b) Fees, charges, late charges, fines, all collection costs, including
reasonable attorney's fees actually incurred and interest charged
against a Lot Owner pursuant to Declaration, the Bylaws and the Rules
and Regulations are enforceable as common expense assessments.
Section 10.4 Lien for Assessments. Liens for assessments are as
described in Section 47F-3-116 of the Planned Community Act and as
otherwise provided for in the Documents.
Section 10.5 Annual Assessment. The annual assessment covering
the estimated operating costs of the Association for the coming
calendar year shall be determined prior to December 31 of the year
preceding the year for which the assessment has been made.
Section 10.6 Liability of Lots. At the time any Lot common
expense assessment or portion thereof is due and payable, the lot owner
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.
Section 10.7 Liability for Common Expenses. No Lot shall be
exempt from liability for payment of the common expenses by the
lot owner’s waiver of the use or enjoyment of the Common Elements or by
abandonment of the Lot against which the assessments are made.
Section 10.8 Special Assessments. The Board may
request special assessments for the repair of and/or construction
on the common elements. Such assessments shall require
Association approval. This approval requires a quorum of eighty
(80) eligible voters and a minimum of sixty-six (66) affirmative votes.
Article 11
Fiscal Responsibility
The Board is charged with the responsibility of the financial well
being of the Association. This responsibility shall be discharged by
annually submitting to the Members of the Association for their
approval of the following:
(a) A calendar year operating budget.
(b) A calendar year capital budget.
The Board shall maintain a reserve fund that is funded by an
end-of-fiscal-year transfer. The amount of the transfer shall be the
sum of the calculated contributions needed to build the fund to a level
estimated to be adequate at the time of need.
The Board shall provide the Members with monthly fiscal reports.
Article 12
Leases and Sales
In order to protect the value of all the Lots, the sale or leasing of a
residence on a Lot shall be subject to the following
provisions.
Section 12.1 Renting or Leasing of a Residence. Residences may be
rented only in their entirety and only to a single family; no fraction
or portion may be rented. All leases and lessees are subject to the
provisions of the Declaration, Bylaws, and Rules and Regulations.
The lot owner must make available to the tenant copies of the
Declaration, Bylaws, and Rules and Regulations.
"Leasing" for purposes of this Declaration is defined as regular
occupancy of a residence on a Lot by any person other than the lot
owner for which the lot owner receives any consideration or
benefit, including a fee, service, gratuity, or gain.
Any lease of a residence in Etowah’s Reach shall be deemed to contain
the following provisions, whether or not expressly therein stated, and
each lot owner covenants and agrees that any lease of a residence shall
contain the following language and agrees that if such language is not
incorporated into a lease such covenants nevertheless apply to the
residence through the existence of this covenant. Any lessee, by
occupancy in a residence, agrees to the applicability of this covenant
and incorporation of the following language into the lease:
(a) Liability for Assessments. All unpaid common
expense assessments, as lawfully determined and made payable during the
term of the lease and any other period of occupancy by lessee shall be
the responsibility of the owner of the Lot.
(b) Compliance with Declaration, Bylaws, and Rules
and Regulations. Lessee agrees to abide by and comply with all
provisions of the Declaration, Bylaws, and Rules and Regulations
adopted pursuant thereto. Lot owner agrees to cause all occupants
of the Lot to comply with the Declaration, Bylaws, and the Rules
and Regulations adopted pursuant thereto, and is responsible for all
violations and losses caused by such occupants, notwithstanding the
fact that such occupants of the residence are fully liable and may be
sanctioned for any violation of the Declaration, Bylaws, and Rules and
Regulations adopted pursuant thereto.
Any violation of the adopted Documents is deemed to be a violation of
the terms of the lease. Should the violations impact the well
being of the community, the Association may take action against the
owner of the Lot in accordance with Article 15 of this Declaration.
Section 12.2 Sale of a Residence. When a residence is sold, the Lot
owner shall
(a) provide the Association Secretary
and the Association Treasurer with the sale date and the buyer name.
(b) convey to the buyer the binder containing the current Etowah’s
Reach governance documents.
(c) have paid the operating assessment up to and including the month of
the sale, any unpaid special assessments, and any unpaid fees, fines,
etc.
Article 13
Architectural
Standards and Control
Lot owners may replace or make exterior changes subject to the
provisions of this Article, the Rules and Regulations of the
Association, and applicable laws and ordinances.
Section 13.1 Dwelling Type. Only single family
dwellings with a basic heated living area of 1350 sq. ft. or more shall
be constructed.
Section 13.2 Dwelling Height. Dwelling height shall be
limited to two living area stories and no more than one story shall
face the highest elevation street.
Section 13.3 Dwelling Appearance. Dwellings shall be
constructed consistent with existing dwellings by means of exterior
shape and building materials.
Section 13.4 Dwelling Exterior. No dwelling shall have exposed
unfinished concrete or block construction.
Section 13.5 Dwelling Location. The closest side of a dwelling or
attached structure shall be at least 15 feet from the nearest street
right-of-way line, at least 10 feet from the rear property line, and at
least 8 feet from a side property line.
Section 13.6 Antennas.
(a) Satellite dishes one (1)
meter (39 inches) or less in diameter are permitted.
(b) All other exterior antennas for television, radio, citizen
band, ham radio, or any other exterior fixture or appliance for
electronic devices or for transmission or receipt of communication
signals on a Lot, whether attached to a building or free standing are
prohibited.
Section 13.7 Approval. Prior to exterior construction or
reconstruction of any dwelling, portion thereof, or attachment; plans
must be submitted through the Architectural Review Committee for Board
approval.
Section 13.8 Solar Collectors. Roof mounted solar collectors are
permitted, but location and aesthetics must be approved by the
Architectural Review Committee.
Article 14
Maintenance Responsibility
Section 14.1 By the Association. The Association shall maintain and
keep in good repair, as a common expense, all Common Element facilities
and areas.
Section 14.2 Restrictions on Lot Owners. No lot owner shall
perform or cause to be performed any maintenance, repair, or
replacement work upon his or her Lot which disturbs the rights of the
other lot owners. No Lot or residence thereon shall be devalued
by deed.
Section 14.3 Responsibility for Damages. If damage for which a
lot owner is legally responsible is inflicted on the property of
another lot owner, the lot owner responsible for the damage shall
repair such damage.
If damage is inflicted on any Lot by an agent of the Association in the
scope of his/her activities as such agent, the Association is liable to
repair such damage or to reimburse the lot owner for the cost of
repairing such damages. The Association shall also be liable for
any losses to the lot owner.
Section 14.4 Insurance Deductibles. If repair of the common
elements is required as a result of an insured loss, the amount of the
deductible shall be paid by the Association. However, if such
repair is required because of an act or omission of a lot owner, or his
or her immediate family member(s), guest(s), tenant(s) or
lessee(s), the lot owner shall pay the amount of the deductible.
Article 15
Enforcement Procedures
Section 15.1 Violation Identification. Formal consideration by
the Board of a violation of the Declaration, Bylaws, or Rules and
Regulations shall not take place until a hearing establishes there is a
violation.
Section 15.2 Hearing. The hearing shall be held before the Board
or a committee designated by the Board and the alleged violator shall
be given an opportunity to present statements, evidence, and
witnesses. The Board or designated committee shall render its
decision no later than five (5) days after the hearing.
Section 15.3 Demand. Upon determining that there is a violation,
a written demand to cease and desist shall be served upon the violator
within ten (10) days of the Hearing. This written demand shall specify:
(i) the violation; (ii) the action required to abate the violation; and
(iii) a time period, not less than ten (10) days, during which the
violation may be abated without sanction. However, should the
violation persist, a sanction may be imposed.
Section 15.4 Sanction. If the violation continues past the period
allowed in the written demand for abatement, the Board may impose a
fine by giving the violator written notice of such within one (1) month
of the termination of the period stated in the Demand.
If part or all of the Common Elements of Etowah’s Reach are taken by
eminent domain, all compensation and damages for and on account of the
taking shall be distributed to the Lots in equal parts.
Article 17
Miscellaneous Provisions
Section 17.1 Gender. The use of the masculine gender also 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 17.2 Captions. The captions used in the Documents are
used only for convenience and reference and in no way define, limit, or
describe the scope of a particular Document or the intent of any
provision thereof.
Section 17.3 Waiver.
(a) No provision contained in the
Documents is abolished or waived by reason of any failure to enforce
the same, irrespective of the number of violations or breaches which
may occur.
(b) A waiver may be granted when a lot owner can show that a strict
interpretation of a restriction or rule is not appropriate for the
identified situation. A request for a waiver will be accepted only if
the Waiver Request form is submitted.
A waiver will not be based on the existence of any non conforming
situations in Etowah’s Reach.
The granting of a waiver shall not serve to waive any of the
restrictions or provisions of the Etowah’s Reach governance documents
for any purpose except as to the particular Lot and the particular
provision covered by the waiver.
The decision to grant a waiver shall be made by a Waiver Committee of
five (5) residents appointed by the Board of Directors; none of whom
are a member of the Board of Directors, the Architectural Review
Committee, or the Hearing Committee.
Section 17.4 Invalidity. The invalidity of any provision of the
Documents does not impair or affect in any manner the validity,
enforcement, 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 17.5 Conflict. The Documents are intended to comply with
applicable requirements of the North Carolina Planned Community
Act and of the North Carolina Nonprofit Corporation Act (N.C. Gen.
Stat., Chapter 55-A) 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. In the event of any conflict between the Bylaws and the
Association’s Rules and Regulations, the Bylaws shall prevail.
Section 17.6 Disputes. Lot owners and their family members,
tenants and their family members, or guests claiming a right of action
against the Association shall agree to mediate the issue.
Section 17.7 Grandfathering. When these documents go into effect:
(a) Existing non compliance
situations affecting other lot owners must be identified within three
(3) months and brought into compliance within nine (9) months after
identification.
(b) Existing non compliance situations not affecting other lot
owners are allowed to remain. However, when a change is proposed
for such a non compliance situation, the change must bring the
situation into compliance.
Section 17.8 Appeals. When the accused violator of a restriction
feels that the Hearing Committee did not properly consider all the
facts or when a lot owner feels that a request for a waiver was not
properly considered by the Waiver Committee, the decision may be
appealed. The hearing body for such appeals shall be the Board of
Directors.
This Declaration of Etowah’s Reach may be amended only by the Eligible
Voters. Approval to amend requires a quorum of eighty (80)
eligible voters and a minimum of sixty-six (66) affirmative votes.
Notice of the Special Meeting at which an amendment will be considered
shall state that fact and the subject matter of the proposed
amendment. Amendments shall become effective upon being recorded
in the office of the Register of Deeds of Henderson County, North
Carolina.
Article 19
Renewal and Termination
This Declaration shall run for twenty-five (25) years from the date of
adoption and shall automatically renew for periods of twenty-five (25)
years or until such time that an amendment, a new Declaration, or
termination shall occur.
Termination of Etowah’s Reach (the Planned Community) shall require
Association approval. This approval requires a quorum of eighty-five
(85) eligible voters and a minimum of seventy-two (72) affirmative
votes.
The following terms as used in the Declaration and Bylaws for Etowah’s
Reach (the Planned Community) shall have the following meanings:
Section 20.1 Declaration means this restated Declaration for Etowah’s
Reach, and including any duly recorded future amendments to the
Declaration.
Section 20.2 Bylaws means the restated Bylaws of Etowah’s Reach
Property Owners Association, Inc. attached hereto and any future
amendments.
Section 20.3 Documents mean the Declaration, Plats and/or Deeds
recorded and filed for real property making up Etowah’s Reach, the
Articles of Incorporation of Etowah’s Reach Property Owners
Association, Inc., 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 20.4 Association means Etowah’s Reach Property Owners
Association, Inc., a North Carolina non-profit corporation and its
successors.
Section 20.5 Board means the Board of Directors of Etowah’s Reach
Property Owners Association, Inc. which is the governing body on behalf
of and for the Association.
Section 20.6 Agenda means the list of items of business to be brought
before a meeting. Once accepted after the opportunity for agenda
revisions, it shall not be changed.
Section 20.7 Voting Quorum means the minimum number of eligible voters
that must cast ballots for decisions to have legal standing.
Section 20.8 Ballot means a confidential form used by eligible voters
of the Association to cast their vote.
Section 20.9 Voting means the act of voting on Association business by
eligible voters.
Section 20.10 Eligible Voter means the person authorized to cast a vote
for a Lot whose voting right has not been suspended in accordance with
Article 9, Section 9.1, Paragraph (a) of this Declaration.
Section 20.11 Lot means the physical portion of Etowah’s Reach
designated for separate ownership and occupancy.
Section 20.12 Lot Owner means the legal owner of a lot, but does
not include a person having an interest in a lot solely as security for
an obligation.
Section 20.13 Association Member means Etowah’s Reach lot owners and
family members permanently living with them. Membership in the
Association for each person is automatic.
Section 20.14 Renter means a person or a single family renting a
home in Etowah’s Reach. The renter has, if the Lot assessments
are paid, the use of the common elements and may participate in all
Association social activities. A renter does not have Association
voting privileges.
Section 20.15 Common Expenses mean expenditures made by or financial
liabilities incurred for the operation of or connected in any way with
Etowah’s Reach. These include:
(a) Expenses of administration,
maintenance, repair or replacement of the common elements;
(b) Expenses defined, referred to, or declared to be common
expenses by the Documents;
(c) Expenses agreed upon as common expenses by the Association; and
(d) Such reasonable reserves as
may be established or allocated by the Association, whether held in
trust or by the Association, for repair, replacement or addition to the
common elements or any other real or personal property acquired or held
by the Association.
Section 20.16 Operating Budget means a budget that covers reoccurring
and necessary expenditures and revenues that allow the Association to
function during the fiscal year as required by the Documents.
Section 20.17 Capital Budget means a budget that covers Common Expenses
(Section 20.15 above) categorized as capital expenditure projects
(replacement, acquisition, and construction) expected to be undertaken
within the fiscal year.
Section 20.18 Operating Fund means monies available to pay for
day-to-day expenses, emergency expenses, and unexpected expenses.
The Operating Fund consists of all monies not in the Reserve Fund.
Section 20.19 Reserve Fund means monies held in reserve for specific
purposes. See Bylaws Article VII, Section 8.
Section 20.20 Contingency means a classification of budgeted
funds for a necessary expense that results from an unforeseen
occurrence.
Section 20.21 Assessments means any and all sums levied by
the Association against any Lot 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 20.22 Reasonable Attorneys’ Fees means attorneys’ fees
reasonably incurred without regard to any limitations on attorneys’
fees which otherwise may be allowed by law.
Section 20.23 Political Sign means a sign that supports or
opposes a named issue on a ballot or a candidate or candidates seeking
election.
IN WITNESS WHEREOF, the undersigned President of Etowah’s Reach
Property Owners Association, Inc. hereby certifies that the above
restated Declaration for the Planned Community of Etowah’s Reach and
the following restated Bylaws along with attached appendices were duly
adopted by the Association and its membership after a community vote on
July 27, 2004 conducted in accordance with and pursuant to the Planned
Community Act and the Bylaws of the Association.
This the ______ day of September 2008.
Etowah’s Reach
Property Owners Association, Inc.
PO Box 433,
Etowah, NC 28729
By:
_______________________________
President
Attest: ______________________________
Secretary
STATE OF NORTH CAROLINA
HENDERSON COUNTY
I, __________________________, Notary Public for
said County and State, certify that __________________________
personally came before me this day and acknowledged that he is
Secretary of Etowah’s Reach Property Owners Association, Inc., and that
by authority duly given and as the act of the corporation, the
foregoing instrument was signed in its name by its President, sealed
with its corporate seal, and attested by himself as its Secretary.
Witness my hand and official seal, this the _____
day of September 2008.
________________________________
Notary Public
My Commission Expires _____________________
NORTH CAROLINA PLANNED COMMUNITY ACT
§ 47F-3-102. (See editor's note for applicability) Powers of
owners' association.
Subject to the provisions of the articles of incorporation or the
declaration and the declarant's rights therein, the association may:
(1) Adopt and amend bylaws and rules and regulations;
(2) Adopt and amend budgets for revenues, expenditures, and reserves
and collect assessments for common expenses from lot owners;
(3) Hire and discharge managing agents and other employees, agents, and
independent contractors;
(4) Institute, defend, or intervene in litigation or administrative
proceedings on matters affecting the planned community;
(5) Make contracts and incur liabilities;
(6) Regulate the use, maintenance, repair, replacement, and
modification of common elements;
***(7) through (10) not applicable to Etowah’s Reach ***
(11) Impose reasonable charges for late payment of assessments, not to
exceed the greater of twenty dollars ($20.00) per month or ten percent
(10%) of any assessment installment unpaid and, after notice and an
opportunity to be heard, suspend privileges or services provided by the
association (except rights of access to lots) during any period that
assessments or other amounts
due and owing to the association remain unpaid for a period of 30 days
or longer;
(12) After notice and an opportunity to be heard, impose reasonable
fines or suspend privileges or services provided by the association
(except rights of access to lots) for reasonable periods for violations
of the declaration, bylaws, and rules and regulations of the
association;
(13) Impose reasonable charges in connection with the preparation and
recordation of documents, including, without limitation, amendments to
the declaration or statements of unpaid assessments;
(14) Provide for the indemnification of and maintain liability
insurance for its officers, executive board, directors, employees, and
agents;
(15) Assign its right to future income, including the right to receive
common expense assessments;
(16) Exercise all other powers that may be exercised in this State by
legal entities of the same type as the association; and
(17) Exercise any other powers necessary and proper for the governance
and operation of the association. (1998-199, s. 1.)
_________
Editor’s Note. - Session Laws 1998-199, s. 3, provides in part that
G.S. 47F-3-102(1) through (6)
and (11) through (17) apply to planned communities created prior to the
effective date of January 1,1999.
§ 47F-3-107. (See editor's note for applicability) Upkeep of
planned community; responsibility and assessments for damages.
(a) Except as otherwise provided in the declaration, G.S. 47F-3-113(h)
or subsection (b) of this section, the association is responsible for
causing the common elements to be maintained, repaired, and replaced
when necessary and to assess the lot owners as necessary to recover the
costs of such maintenance, repair, or replacement except that the costs
of maintenance, repair, or replacement of a limited
common element shall be assessed as provided in G.S. 47F-3-115(c)(1).
Except as otherwise provided in the declaration, each lot owner is
responsible for the maintenance and repair of his lot and any
improvements thereon. Each lot owner shall afford to the association
and when necessary to another lot owner access through the lot owner's
lot reasonably necessary for any such maintenance, repair, or
replacement activity.
(b) If a lot owner is legally responsible for damage inflicted on any
common element, the association may direct such lot owner to repair
such damage, or the association may itself cause the repairs to be made
and recover damages from the responsible lot owner.
(c) If damage is inflicted on any lot by an agent of the association in
the scope of the agent's activities as such agent, the association is
liable to repair such damage or to reimburse the lot owner for the cost
of repairing such damages. The association shall also be liable for any
losses to the lot owner.
_________
Editor’s Note. - Session Laws 1998-199, s. 3, provides in part that
G.S. 47F-3-107(a), (b), and (c),
apply to planned communities created prior to the effective date of
January 1, 1999.
§ 47F‑3‑107.1. Procedures for fines and suspension of planned
community privileges or services.
Unless a specific procedure for the imposition of fines or suspension
of planned community privileges or services is provided for in the
declaration, a hearing shall be held before the executive board or an
adjudicatory panel appointed by the executive board to determine if any
lot owner should be fined or if planned community privileges or
services should be suspended pursuant to the powers granted to the
association in G.S. 47F‑3‑102(11) and (12). Any adjudicatory panel
appointed by the executive board shall be composed of members of the
association who are not officers of the association or members of the
executive board. The lot owner charged shall be given
notice of the charge, opportunity to be heard and to present evidence,
and notice of the decision. If it is decided that a fine should be
imposed, a fine not to exceed one hundred dollars ($100.00) may be
imposed for the violation and without further hearing, for each
day more than five days after the decision that the violation occurs.
Such fines shall be assessments secured by liens under G.S. 47F‑3‑116.
If it is decided that a suspension of planned community privileges or
services should be imposed, the suspension may be
continued without further hearing until the violation or delinquency is
cured. The lot owner may appeal the decision of an adjudicatory panel
to the full executive board by delivering written notice of appeal to
the executive board within 15 days after the date of
the decision. The executive board may affirm, vacate, or modify the
prior decision of the adjudicatory body.
§ 47F-3-115. (See editor's note for applicability) Assessments for
common expenses.
(a) Except as otherwise provided in the declaration, until the
association makes a common expense assessment, the declarant shall pay
all common expenses. After any assessment has been made by the
association, assessments thereafter shall be made at least annually.
(b) Except for assessments under subsections (c), (d), and (e) of this
section, all common expenses shall be assessed against all the lots in
accordance with the allocations set forth in the declaration. Any
past-due common expense assessment or installment thereof bears
interest at the rate established by the association not exceeding
eighteen percent (18%) per year. For planned communities created prior
to
January 1, 1999, interest may be charged on any past-due common expense
assessment or installment only if the declaration provides for interest
charges, and where the declaration does not otherwise specify the
interest rate, the rate may not
exceed eighteen percent (18%) per year.
(c) To the extent required by the declaration:
(1) Any common expense associated with
the maintenance, repair, or replacement of a limited common element
shall be assessed against the lots to which that limited common element
is assigned, equally, or in any other proportion that the declaration
provides;
(2) Any common expense or portion thereof benefiting fewer than all of
the lots shall be assessed exclusively against the lots benefitted; and
(3) The costs of insurance shall be assessed in proportion to risk and
the costs of utilities shall be assessed in proportion to usage.
(d) Assessments to pay a judgment against the association may be made
only against the lots in the planned community at the time the judgment
was entered, in proportion to their common expense liabilities.
(e) If any common expense is caused by the negligence or misconduct of
any lot owner or occupant, the association may assess that expense
exclusively against that lot owner or occupant's lot.
(f) If common expense liabilities are reallocated, common expense
assessments
and any installment thereof not yet due shall be recalculated in
accordance with the
reallocated common expense liabilities. (1998-199, s. 1.)
__________
Editor’s Note. - Session Laws 1998-199, s. 3 provides in part that this
section is applicable to planned communities created prior to the
effective date of January 1, 1999.
§ 47F-3-116. (See editor's note for applicability) Lien for
assessments.
(a) Any assessment levied against a lot remaining unpaid for a period
of 30 days or longer shall constitute a lien on that lot when a claim
of lien is filed of record in the office of the clerk of superior court
of the county in which the lot is located in the manner provided
herein. Unless the declaration otherwise provides, fees, charges, late
charges, and other charges imposed pursuant to G.S. 47F‑3‑102,
47F‑3‑107, 47F‑3‑107.1, and 47F‑3‑115 are enforceable as assessments
under this section. Except as provided in subsections (a1) and (a2) of
this section, the association may foreclose the claim of lien in like
manner as a mortgage on real estate under power of sale under Article
2A of Chapter 45 of the General Statutes.
(a1) An association may not foreclose
an association assessment lien under Article 2A of Chapter 45 of the
General Statutes if the debt securing the lien consists solely of fines
imposed by the association, interest on unpaid fines, or attorneys'
fees incurred by the association solely associated with fines imposed
by the association. The association, however, may enforce the lien by
judicial foreclosure as provided in Article 29A of Chapter 1 of the
General Statutes.
(a2) An association shall not levy, charge, or attempt to collect a
service, collection, consulting, or administration fee from any lot
owner unless the fee is expressly allowed in the declaration. Any lien
securing a debt consisting solely of these fees may only be enforced by
judicial foreclosure as provided in Article 29A of Chapter 1 of the
General Statutes.
(b) The lien under this section is prior to all liens and encumbrances
on a lot except (i) liens and encumbrances (specifically including, but
not limited to, a mortgage or deed of trust on the lot) recorded before
the docketing of the claim of lien in the office of the clerk of
superior court, and (ii) liens for real estate taxes and other
governmental assessments and charges against the lot. This subsection
does not affect the priority of mechanics' or materialmen's liens.
(c) A lien for unpaid assessments is extinguished unless proceedings to
enforce the lien are instituted within three years after the docketing
of the claim of lien in the office of the clerk of superior court.
(d) This section does not prohibit other actions to recover the sums
for which subsection (a) of this section creates a lien or prohibit an
association taking a deed in lieu of foreclosure.
(e) A judgment, decree, or order in any action brought under this
section shall include costs and reasonable attorneys' fees for the
prevailing party. If the lot owner does not contest the collection of
debt and enforcement of a lien after the expiration of the 15‑day
period following notice as required in subsection (e1) of this section,
then reasonable attorneys' fees shall not exceed one thousand two
hundred dollars ($1,200), not including costs or expenses incurred. The
collection of debt and enforcement of a lien remain uncontested as long
as the lot owner does not dispute, contest, or raise any objection,
defense, offset, or counterclaim as to the amount or validity of the
debt and
lien asserted or the association's right to collect the debt and
enforce the lien as provided in this section. The attorneys' fee
limitation in this subsection shall not apply to judicial foreclosures
or to proceedings authorized under subsection (d) of this section or
G.S. 47F‑3‑120.
(e1) A lot owner may not be required to
pay attorneys' fees and court costs until the lot owner is notified in
writing of the association's intent to seek payment of attorneys' fees
and court costs. The notice must be sent by first‑class mail to the
property address and, if different, to the mailing address for the lot
owner in the association's records. The notice shall set out the
outstanding balance due as of the date of the notice and state that the
lot owner has 15 days from the mailing of the notice by first‑class
mail to pay the outstanding balance without the attorneys' fees and
court costs. If the lot owner pays the outstanding balance within this
period, then the lot owner shall have no obligation to pay attorneys'
fees and court costs. The notice shall also inform the lot owner of the
opportunity to contact a representative of the association to discuss a
payment schedule for the outstanding balance as provided in subsection
(e2) of this section and shall provide the name and telephone number of
the representative.
(e2) The association, acting through its executive board and in the
board's sole discretion, may agree to allow payment of an outstanding
balance in installments. Neither the association nor the lot
owner is obligated to offer or accept any proposed installment
schedule. Reasonable administrative fees and costs for accepting and
processing installments may be added to the outstanding balance and
included in an installment payment schedule. Reasonable attorneys' fees
may be added to the outstanding balance and included in an installment
schedule only after the lot owner has been given notice as required in
subsection (e1) of this section.
(f) Where the holder of a first mortgage or first deed of trust of
record, or other purchaser of a lot obtains title to the lot as a
result of foreclosure of a first mortgage or first deed of trust, such
purchaser and its heirs, successors, and assigns, shall not be liable
for the assessments against such lot which became due prior to the
acquisition of title to such lot by such purchaser. Such unpaid
assessments shall be deemed to be common expenses collectible from all
the lot owners including such purchaser, its heirs, successors, and
assigns.
(g) A claim of lien shall set forth the name and address of the
association, the name of the record owner of the lot at the time the
claim of lien is filed, a description of the lot, and the amount of the
lien claimed. (1998-199, s. 1.)
__________
Editor’s Note. - Sessions Laws 1998-199, s. 3 provides in part that
this section applies to planned communities created prior to the
effective date of January 1, 1999, except that the provisions of G.S.
47E-3-116(e), apply to actions arising on or after the effective date.
DESCRIPTION OF THE PROPERTY KNOWN AS ETOWAH’S REACH
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