THIS DECLARATION, made on the date hereinafter set
forth by the TRIANGLE HOUSING COMMUNITY LLC, a North Carolina Limited
Liability Company, hereinafter referred to as “Declarant.”
WITNESSETH THAT
WHEREAS, Declarant is the Owner of certain Properties
in the City of Durham, County of Durham, and in County of Orange, State
of North Carolina; and
WHEREAS, Declarant will convey Lots from it’s said
Properties subject to certain protective covenants, conditions, restrictions
and easements as hereinafter set forth;
NOW, THEREFORE, Declarant hereby declares that all
of the Properties described hereinafter shall be held, sold and conveyed
subject to the following easements, restrictions, covenants and conditions
which are fore the purpose of enhancing and protecting the value and desirability
of, and shall run with, the Properties and shall be binding on all parties
having any right, title or interest in the described Properties or any
part thereof, their heirs, successors and assigns, and shall inure to
the benefit of each Owner thereof. All
state and local building, electrical, plumbing, and mechanical codes,
health regulations, animal control ordinances, permit procedures and the
like applicable to the Properties shall be observed. In the event of any conflict between provisions of such governmental
code, regulation or restriction and any provision of this Declaration,
the more restrictive provision shall apply.
ARTICLE
I. DEFINITIONS
Section 1. Association
“Association” shall mean and refer to SOLTERRA Home
Owners Association, to be incorporated, its successors and assigns.
Section 2. Owner
“Owner” shall mean and refer to the record Owner, whether
one or more persons or entities of a fee simple title to any Lot which
is part of the Properties, including contract sellers, but excluding those
having such interest merely as security for the performance of an obligation
Section 3. Properties
“Properties shall mean and refer to that certain real
property more particularly described on Exhibit A attached hereto and
incorporated herein by this reference, and such additions thereto as may
hereafter be brought within the jurisdiction of the Association.
Section 4. Common Area
“Common Area” shall mean that certain portion of the
Properties (including the improvements thereto) owned by the Association
for the common use and enjoyment of the Owners, including a Common House,
Conservation Area, any recreational facilities, or other facilities which
may be constructed upon the Properties, including all private roads, driveways
not on individual Lots and emergency access lanes. The Common Area to be owned by the Association at the time of the
conveyance of the first Lot is described with greater particularity on
Exhibit B attached hereto and incorporated herein by this reference.
Section 5. Limited Common
Area
“Limited Common Area” shall mean a portion of the Common
Area reserved for the exclusive use of one of the Lots.
Section 6. Lot
“Lot” shall mean and refer to any plot of land shown
upon any recorded subdivision map of the Properties with the exception
of the Common Area and rights-of-way, which are offered for public dedication.
Section 7. Member
“Member” shall mean and refer to any person or entity
who is an Owner of a Lot as defined in Article IV.
Section 8. Household
“Household” shall mean and refer to all individuals
who will be sharing one Lot. Each
duplex will be constructed with common wall on two platted Lots and shall
consist of two Households.
Section 9. Declarant
“Declarant” shall mean and refer to Triangle Housing
Community LLC, a North Carolina Limited Liability Company, its successors
and assigns if such successors or assigns should acquire more than one
undeveloped Lot from the Declarant for the purpose of development.
ARTICLE
II. POLICY ON DISCRIMINATION
Triangle Housing Community LLC and SOLTERRA Homeowners’
Association, Inc. have a policy of non-discrimination and certifies that
no persons shall be discriminated against in application to or participation
in the Declarant of Association on the basis of race, national or ethnic
origin, color, religion, age, disability, or sexual orientation.
ARTICLE
III. PROPERTY RIGHTS
Section 1. Owner’s Easements
of Enjoyment
Every Owner shall have a right and easement of enjoyment
in an to the Common Area which shall be appurtenant to and shall pass
with the title to every Lot subject to the following provisions:
the right of the Association to permit the use of and
to charge reasonable admission and other fees for the use of any Common
Area;
the right of the Association to suspend the voting
rights by an Owner for any period during which any assessment against
the Owners Lot remains unpaid; and for a period not to exceed sixty (60)
days for any infraction of its published rules and regulations;
the right of the Association, in accordance with its
Articles and Bylaws, to borrow money for the purpose of improving the
Common Area and its facilities, and in aid thereof to deed in trust the
Common Area;
the right of the Association to dedicate or transfer
all or any part of the Common Area to any public agency, authority, or
utility for such purposes and subject to such conditions as may be agreed
to by the Members. No such dedication
to transfer shall be effective unless an instrument agreeing to such dedication
or transfer signed by eighty-five percent (85%) of the Members, or such
other number as may be subsequently established in the Articles and Bylaws
of the Association, has been recorded; and
the right of the Association to formulate, publish,
impose and enforce rules and regulations for the use and enjoyment of
the Common Area, which regulations may further restrict the use of the
Common Area
Section 2. Delegation of
Use
Subject to Section 1 above and Article VII, any Owner
may delegate, in accordance with the Bylaws, the Owner’s rights of use
and enjoyment in and to the Common Area, to family Members, lawful tenants,
or land contract purchasers who reside on such Owner’s Lot. The Owner shall be responsible for the actions of the Owner’s guests,
invitees and licensees.
Section 3. General Easements
and Associated Undertakings
All of the Properties, including Lots and Common Area,
shall be subject to such easements for private roads or drives, public
streets, water lines, sanitary sewers, storm drain facilities, gas lines,
cable communication transmission, telephone and electric power lines and
other public utilities as shall be established by the Declarant or its
predecessor in title with authority of Declarant to convey easements according
to the recorded subdivision plats, and the Association to convey any such
easements which either do no appear on the recorded plats or which Declarant
did not convey prior to the conveyance of Common Areas to the Association
and the Association shall have the power and authority to grant and establish
upon, over, under and across the Common Area, such further easements as
are requisite for the convenient use and enjoyment of the Properties.
An easement is hereby established for the benefit of
Durham County and the City of Durham over all Common Area hereby or hereafter
established for the setting, removal, and reading of water meters, the
maintenance and replacement of water, sewer and drainage facilities, the
fighting of fires, collection of garbage and police protection.
Section 4. Temporary Construction
Access and Disturbance Easement
An easement over, through and to the Common Area is
hereby reserved, conveyed and established in favor of the Declarant, and
all Owners of any Lot to be used for the purposes of ingress, egress,
conduct of construction activity, storage of construction materials, the
necessary disturbance of land for construction on any Lot, and the installation
of driveways, sidewalks, underground drainage and utility conduits and
hookups. This easement shall be used only as an when
necessary to facilitate the construction of improvements at any time on
a Lot by the Declarant or Owner as well as the extension of driveways,
sidewalks, underground drainage and utility conduit and hookups to any
dwelling structure situated on a Lot. In using and taking the benefit of said easement, Declarant, or
its designate and Owners shall use their best efforts to minimize any
soil or land disturbance activities, and shall restore the land to a condition
which is graded smooth and in harmony with surrounding areas. Should Declarant, its designate or an Owner fail to restore the
disturbed land as required above, the Association may restore the land
to the required condition and Declarant, its designate or Owner, as the
case may be, shall indemnify the Association for the reasonable expense
incurred in performing such restoration. Where any Owner shall seek to take advantage of the easement herein
conveyed, such Owner’s rights of use shall be restricted to that Common
Area which shall be reasonably servient and proximate to his Lot. Anything in the foregoing to the contrary notwithstanding, Owner
shall obtain the approval of the Association before commencing any construction
as required in Article VII of this Declaration.
Section 5. Drainage Easement
An easement is hereby granted to allow drainage from
gutters, perimeter drains and other surface-water collection devices to
flow from individual Lots onto the Common Area. In addition, access is also granted to individual Lot Owners to
the Common Area for the installation and maintenance of any and all apparatuses
necessary to accomplish said drainage, including piping, swales, rip-rap,
etc. Said drainage apparatuses
shall not encroach on any other Lot, except by Agreement in writing of
the Owner of the affected Lot. In
addition, all runoff from individual Lots must meet applicable jurisdictional
regulations. Owners wishing to take advantage of this easement
must submit a plan, in writing, according to Article VII, Section 1, below.
Section 6. Solar Access
It is the intention of the community to provide the
benefits of solar heating for its homes. A solar plan (Exhibit C) has been developed for the placement of
the home on each Lot to provide optimum solar access, recognizing some
constraints of Lot size and shape. Certain
evergreen trees will be removed prior to the sale of Lots.
Lot Owners shall not construct any structure or plant
any evergreen tree which will affect another Lot’s direct southerly solar
access. Access is defined as direct
southerly solar radiation on a Lot Owner’s primary collection area between
10 AM and 2 PM on December 21.
Any exceptions or variances from the plan may be approved
under procedures established by the Declarant or by the Governing Body
of the Homeowners’ Association.
Section 7. Title to the
Common Area
The Declarant hereby covenants for itself, its heirs
and assigns that it will convey fee simple title to the Common Area described
on Exhibit B hereto to the Association, free and clear of all encumbrances
and liens, except public streets, private roads or drives, utility easements
and any restrictions of record prior to the conveyance of the first Lot.
Section 8. Utility Charges
for Water and Street Lights
As a consideration for the conveyance oaf the Common
Area and as consideration for the rights, entitlements, and benefits granted
to and conferred upon the Association under and by virtue of this Declaration,
the Association covenants and agrees to accept the responsibility for
payment of any and all fees, charges and expenses arising by virtue of
the use of water, gas, electricity provided to and used in connection
with any of the Common Area and by virtue of the use and operation of
the street lights (or any other utility) installed and erected within
the Common Areas. Such cost of fees, charges and expenses paid
shall be charged ratably to the Owners as an assessment according to the
provision of Article V below.
ARTICLE
IV. MEMBERSHIP AND VOTING RIGHTS
Section 1. Membership
Every Owner of a Lot which is subject to assessment
shall be a Member of the Association. Membership shall be appurtenant to and may not be separated from
Ownership of any Lot which is subject to assessment. The Association my establish provisions which permit other residents
to be named as Member.
Section 2. Voting Rights
The Consensus process shall be used in the conduct
of Association business. When
voting shall be required, voting rights shall be as follows. The Association shall have one class of voting Membership, with
two votes for each Lot. Each Household
shall decide how its vote shall be cast, but in no case shall any Lot
have more than two votes. All
voting shall take place in accordance with the Bylaws of the Association.
ARTICLE
V. COVENANT FOR MAINTENANCE ASSESSMENTS
Section 1. Creation of
the Lien and Personal Obligation of Assessments
The Declarant, for each Lot owned within the Properties,
hereby covenants, and each Owner of any Lot by acceptance of a deed therefore,
whether or not it shall be so expressed in such deed, is deemed to covenant
and agree to pay to the Association:
annual assessments or charges
special assessments for capital improvements, such
assessments to be established and collected as hereinafter provided. The annual and special assessments, together
with interest, costs, and reasonable attorney’s fees, shall be a charge
on the land and shall be a continuing lien upon the property against which
such assessment is made. Each
such assessment, together with interest, costs, and reasonable attorney’s
fees, shall also be the personal obligation of the person who was the
owner of such property at the time the assessment fell due. The personal obligation for delinquent assessments shall not pass
to his/her successors in title unless expressly assumed by them.
Section 2. Purpose of Assessments
The Assessment levied by the Association shall be used
exclusively to promote the recreation, health, safety, and welfare of
the Residents in the Properties and shall be adequate to assure for the
improvement and maintenance of the Common Area (including the perpetual
maintenance of the private roads, the water system, the sewage pump station
and sewage lines on common property in addition to maintenance of the
pump station provided by the City of Durham), and for the establishment
of adequate reserves for the replacement of capital improvements, if any,
located within the Common Area, payment of utility charges on Common Area
facilities, payment of insurance premiums for contacts of hazard and liability
insurance on the Common Area and payment of local ad valorem taxes, if
any, on the Common Area.
Section 3. Rate of Assessment
Annual assessments shall be fixed according to a formula
to be determined by the Homeowners Association.
Special assessments shall be fixed at a uniform rate
for all Lots.
Annual assessments shall be due and payable and collected
on a monthly basis. Collection
rates for special assessments shall be determined by the Association and
collected on a monthly basis.
Section 4. Date of Commencement
of Annual Assessments: Due Dates
The annual assessments provided for herein shall commence
and shall be due and payable in twelve monthly installments as to all
Lots beginning on the first day of the month following the taking title
to th4e Lot, and on the first day of any consecutive month thereafter. Such amount due and payable on the first day
of each such month shall be equal to the monthly assessment as set forth
and established pursuant to Section 3 of this Article. The initial annual assessment shall be prorated monthly to the end
of the fiscal year at which time new rates may be set according to Section
4(a). The Governing Body of the
Association shall fix the amount of the annual assessment against each
Lot at least thirty (30) days in advance of each annual assessment period. Written notice of the annual assessment shall
be sent to every Owner subject thereto. The due date shall be as previously set forth herein, unless otherwise
established by the Governing Body of they Association. The Association shall, upon demand, and for
a reasonable charge, furnish a certificate signed by an officer of the
Association setting forth whether the assessment on a specified Lot have
been paid. A properly executed certificate of the Association
as to the status of assessments on a Lot is binding upon the Association
as of the date of its issuance.
From and after January 1 of the year immediately following
the conveyance of the first Lot to an Owner, the annual assessment may
be increased each year not more than five percent (5%) above the assessment
for the previous year by the Governing Body of the Association without
approval of the Membership.
From and after January 1 of the year immediately following
the conveyance of the first Lot to an Owner, the annual assessment may
be increase above five percent (5%) only by consent of the Members at
a meeting duly called for this purpose.
The Governing Body of the Association may fix the annual
assessment at an amount not in excess of the maximum.
The Governing Body of the Association may specify certain
tasks which if done by Members of the Association would result in a savings
to the Association instead of their being contracted for (examples, maintenance
of grounds and common house, bookkeeping). Members may volunteer to take on these duties, and upon performing
them satisfactorily receive a reduction of the monthly assessment at a
rate to be set annually by the Governing Body of the Association. The rate of reduction may be altered even if
the assessment rate is not changed.
Any mortgagee who shall take possession of a Lot pursuant
to a mortgage foreclosure or an proceeding in lieu thereof shall be responsible
for all future assessments due on that Lot.
Neither the Declarant nor the Association shall be
required to pay assessments on any unsold Lot.
Section 5. Special Assessments
for Capital Improvements
In addition to the annual assessments authorized above,
the Declarant may levy, in any assessment year, a special assessment applicable
to that year only for the purpose of defraying, in whole or in part, the
cost of any construction, reconstruction, repair or replacement of a capital
improvement upon the Common Area, including fixtures and personal property
related thereto; provided however, any such assessment shall be determined
by the Association a meeting duly called for this purpose.
Section 6. Notice and Quorum
for any Action Authorized Under Section 3 and 4
Written notice of any meeting called for the purposed
of taking any action authorized under Section 3 or 4 of this Article shall
be sent to all Members not less than thirty (30) days nor more than sixty
(60) days in advance of the meeting. At the first such meeting called, the presence of Members or proxies
entitled to cast fifty percent (50%) of all the votes of the Membership
shall constitute a quorum. If the required quorum is not present, another
meeting may be called subject to the same notice requiremen5t, and the
required quorum at the subsequent meeting shall be one-half (1/2) of the
required quorum at the preceding meeting. No such subsequent meeting shall be held more than 60 days following
the preceding meeting.
Section 7. Effect of Nonpayment
of Assessment: Remedies of the
Association
Any assessment not paid within thirty (30) days after
the due date shall bear interest from the due date at a rate to be determined
for the following fiscal year by the Association at its annual meeting,
and shall be subject to a late charge of an amount to be determined from
time to time by the Governing Body of the Association. The Association may bring action at law against the Owner personally
obligated to pay the same for delinquent assessment, interest costs, late
charges and reasonable attorney’s fees of any such action, or foreclose
the lien against the property. For
purposed of the Section the amount of delinquent assessment, plus accrued
interest, shall be considered evidenced by this paragraph and therefore,
evidence of indebtedness shall exist hereby. No Owner may waive or otherwise escape liability for the assessments
provided for herein by non-use of the Common Area or abandonment of the
Owner’s Lot.
Section 8. Subordination
of the Lien to Mortgages
The lien of the assessments provided for herein shall
be subordinate to the lien of any first mortgage. Sale or transfer of any Lot shall not affect the assessment lien. However, the sale or transfer of any Lot pursuant
to mortgage foreclosure or any proceeding in lieu thereof, shall extinguish
the lien of such assessments as to the payments which become due prior
to such sale or transfer. No sale
or transfer shall relieve such Lot form Liability for any assessment thereafter
becoming due or from the lien thereof.
ARTICLE
VI. INSURANCE
Section 1. Ownership of
Policies
Contracts of insurance upon the Common Area shall be
purchased by the Association for the benefit of the Association and its
mortgages, if any, as their interests may appear. The Association may re-evaluate its coverage from time to time and
may provide, subject to Section 2 of this Article, for such coverage as
it deems appropriate.
Section 2. Coverage
All improvements and personal property in the Common
Area shall be insured in an amount equal to at least one hundred percent
(100%) of their insurable replacement value as determined annually by
the Association with the assistance of the insurance company underwriting
the coverage. Such coverage shall provide protection against
loss or damage by fire and other hazards covered by a standard extended
coverage endorsement and other such risks as from time to time shall be
customarily covered with respect thereto. If available, policies shall contain an Inflation Guard Endorsement
and a Building Ordinance or Law Endorsement, should the enforcement of
any building, zoning, or land-use law result in loss or damage, increased
cost of repairs or reconstruction, or additional demolition and removal
costs, and must provide for contingent liability from the operation of
building laws, demolition costs, and increased costs of reconstruction. In addition, the Association shall acquire
and maintain in full force and effect a policy of insurance which insures
against any public liability arising out of it Ownership of the Common
Area and the use and operation thereof with limits of liability thereof
of not less than One Million Dollars ($1,000,000.00) per occurrence and
shall include an endorsement to cover liability of the Owners as a group
to a single Owner. There shall also be obtained such other insurance
coverage as the Association shall from time to time determine to be desirable
and necessary or as may be required by the Federal Housing Authority,
Veterans Administration or Federal National Mortgage Association. Such policies shall contain certain clauses
providing for waiver of subrogation, if possible.
Section 3. Fidelity Insurance
or Bond
All persons responsible for or authorized to expend
funds or otherwise deal in the assets of the Association, shall first
be bound by a fidelity insurer to 8ndemnify the Association for any loss
or default in the performance of their duties in an amount equal to at
least six (6) months’ assessments plus reserves accumulated. The Association will pay the premium for any security bond for
any Member responsible for expending funds or dealing in the assets of
the Association.
Section 4. Premiums
Premiums for contracts of insurance purchased by the
Association shall be paid by the Association as part of the annual costs
of maintaining the common property and will be included in the Owner’s
assessment according to the provisions of Article V above.
Section 5. Proceeds
All contracts of insurance purchased by the Association
shall be fore the benefit of the Association and its mortgages, if any,
as their interests may appear, and shall provide that all proceeds thereof
shall be payable to the Association as insurance trustee under the Declaration. The sole duty of the Association as insurance
trustee shall be to receive such proceeds as are paid and to hold the
same in trust for the purposes stated herein.
Section 6. Distribution
of Insurance Proceeds
Proceeds of contracts of insurance received by the
Association as insurance trustee shall be distributed to or for the benefit
of the beneficiary or beneficiaries thereof in the following manner:
The proceeds shall be paid first to defray the cost
of reconstruction and repair of casualty or liability so covered.
Any expense of the insurance trustee may be paid from
proceeds after payment of reconstruction or repair expenses or liability. Any proceeds remaining thereafter shall be
distributed to the beneficiary or beneficiaries of the trust.
ARTICLE
VII. ARCHITECTURAL AND APPEARANCE
CONTROL
Section 1. Required Approval
No building, fence, wall or other structure shall be
commenced, erected or maintained upon the Properties, nor shall any exterior
addition to or change or alteration therein be made including expansions
of the initial residential structure or a material change in the exterior
color of the residential structure, until the Plans and Specifications
showing the nature, kind, shape, height, materials, color and location
of the same shall have been submitted to and approved in writing as to
harmony of external design, appearance and location in relation to surrounding
structures and topography, and adherence to the Architectural Code established
by the Association. Approval shall be given in writing, by the
Members of the Declarant or, after the dedication of the Common Area to
the Association, by the Governing Body of the Association, or by an Architectural
Review Board composed of three (3) or more representatives appointed by
the respective Boards. In the
event such Board, or its designated committee, fails to approve or disapprove
such design and location within thirty (30) days after said plans and
specifications have been submitted to it, approval will not be required
and this Article will be deemed to have been fully complied with.
Section 2. Building Heights and Setbacks
No house shall be higher than 30 feet from ground level
to the highest point of the roof measured on the side of the house having
the greatest exposure of wall above ground. In the case of houses on sloping Lots exceptions may be granted
by the Architectural Review Board. Chimneys
and vent stacks may exceed thirty (30) feet.
The minimum setback from all Lot lines shall be eight
(8) feet in conformance with the Durham City/County Zoning Ordinance.
Section 3. Required Land
Area
No Lot may be subdivided by sale or otherwise so as
to reduce the total area thereof below that as shown upon any recorded
subdivision map of the Properties.
Section 4. Water and Sewer
Laterals
Each Lot shall be served by individual water meters
and sewer laterals and in no case shall more than one Lot be served by
the same water meter or the same sewer collection lateral from the main
sewer collection line. No water
or sewer lateral shall cross any Lot other than that Lot being served
by the lateral. All water and sewer laterals within each Lot
will be the responsibility of the Lot Owner. All laterals between the Lot line and the water main or sewer main
will be the responsibility of the Association.
Section 5. Reservation
of Variation
Declarant, and in turn the Association, reserves the
right to grant a variance from and/or waiver of any violation of the requirements
set forth above in Section 1 of this Article. Any request for such variance and/or waiver shall be made by the
Owner requesting such in writing to the Declarant Association, or the
designated committee. The Declarant,
Association or its designate shall have the sole right, authority and
complete discretion to grant or deny any such request for any reason including
aesthetics. In the event the Declarant, Association or
its designate does not approve or deny such request within thirty (30)
days from the date received, this right will be waived and any such request
shall be deemed granted.
Section 6. Handicapped
Access
Facilities constructed in the Common Areas shall be
built following guidelines of the Americans with Disabilities Act to provide
access and usage appropriate to the reasonable use and enjoyment of person
with disabilities. Lot Owners
are encouraged (although not required) to construct their homes to provide
for handicapped access to at least the first level.
Section 7. Cooperative
Maintenance of Common Facilities
All Common Areas and facilities shall be maintained
by the Association in order to provide a safe and attractive appearance.
Section 8. Driveways
All driveways shall be constructed within the provisions
of Section 1 above.
Section 9. Removal of Household
Trash
Houses constructed on Lots numbered 1, 2, 15, 22, 23,
24, 25, 26, 27, 27, 229, 30, and 40 have access by access lanes and driveways
which are not serviced by City of Durham Sanitation Department for pick
up of Household trash, yard trimmings, or materials for recycling. Owners of these Lots, and subsequent Owners
or tenants, shall be informed by receiving a copy of these covenants that
all such materials must be brought to a point on SOLTERRA WAY at which
cit vehicles have access for picking up the materials.
Section 10. Road Maintenance.
SOLTERRA WAY, as recorded on the SOLTERRA Subdivision
Plat, is a private road. It shall
be constructed by the Declarant and maintained in perpetuity solely by
the Association and shall never be dedicated to the City of Durham. The Association shall collect and maintain
through its assessment process sufficient funds for the ongoing maintenance
and resurfacing of SOLTERRA WAY and associated access lanes and driveways
on common property.
Section 11. Radio and Television
Antennas
No exposed or exterior radio or television transmission
or receiving antennas shall be erected, placed or maintained on any part
of any Lot or upon a structure thereon which shall exceed a height of
four (4) feet above the highest point of the roof or the residential structure
upon such Lot. In addition, no dish apparatus intended for
the reception of cable communication transmission in excess of twenty-four
(24) inches in diameter shall be erected, placed or allowed to remain
on any Lot.
Section 12. Landscaping
The Association will be responsible for the landscaping
and maintenance of all Common Areas except for the following:
Owners may plant and remove vegetation on their own
Lots following Article III, Section 6 and any other provisions established
by the Governing Board of the Association and any requirement imposed
by the City of Durham, and are encouraged to consult with their neighbors
before planting or removal of any vegetation in a way that will affect
said neighbors. Dead or diseased trees, shrubs, bushes or other
vegetation shall be cut and removed promptly from any Lot by the Owner
therefore. Plantings must not
restrict movement along the pathways.
All vegetation on the Common Area is the concern of
the entire community. No vegetation
on the Common Area, aside from garden areas, shall be planted, damaged,
or removed (with the exception of poison ivy, poison oak and kudzu) without
the prior approval of the Association.
Section 13. Erosion Control
During the period of Lot grading and construction of
the residential structure and during any future construction thereafter,
each Owner shall exercise and maintain such erosion control measures,
including the erection of silt fences, as may be required by the Declarant
or Association in order to minimize erosion and runoff. Compliance with the applicable erosion control ordinance shall
not constitute automatic approval by the Declarant or Association, and
Declarant and Association reserve the right to impose requirements and
standards in excess of those required by law.
Section 14. Fences and
Privacy
Screens
It is the intention of the community to provide both
direct and visual access to common property, while encouraging areas of
privacy on individual Lots. Therefore,
no fence or privacy screening shall be erected or planted on, or within
eight (8) feet of, the Lot line on the boundary of the areas designated
as “the Commons.” The architectural code will provide specifications
for sizes and types of fences and privacy screening on other parts of
individual Lots.
No mobile homes (sometimes known as “single-wides”
or “double-wides”) shall be permitted as a residence. Modular homes with components manufactured off-site then assembled
on the Owners’ Lot are permitted subject to the same architectural and
appearance controls as houses built entirely on the Lot. The Association shall have full and compl5ete
discretion as to whether a structure is considered to be a mobile home
or a modular home.
Section 16. Zero Clearance
Lots.
The Declarant will establish regulations binding on
the Association and Owners of Lots with adjoining units for the use and
appearance of adjoining units.
ARTICLE
VIII. USE RESTRICTIONS
Section 1. Rules and Regulations
The Governing Body of the Association shall have the
power to formulate, publish and enforce reasonable rules and regulations
concerning the use and enjoyment of each Lot and the Common Area.
Section 2. Conservation
Statement of Intent
It is the intention of the community to encourage the
conservation of resources by the use of the most efficient materials and
equipment available. This includes
encouraging sustainable methods, systems and materials usable on an ongoing
basis without excess resource depletion and without harming natural cycles.
Section 3. Participation
in Community
All persons, including renters, are encouraged to participate
in the life of the community. All
residents agree to abide by Guidelines which may be adopted by the Association
for this purpose.
Section 4. Solicitation
There shall be no solicitation for any organization
or cause within the community by any non-resident.
Section 5. Use of Properties
Vacant Lots must be maintained in a neat condition
including the removal of litter, downed branches, dead or diseased vegetation. The Association will have the right to take steps to maintain any
Lot which an Owner neglects, after providing adequate notification to
the Owner, and assessing the Owner the costs of the cleanup plus an Association
administrative fee at a rate to be determined annually.
No home may be constructed or modified to create two
separate living units on one Lot. The
existence of a full standard kitchen shall define a living unit, but the
Association has the right to use additional determinants in defining living
units, and to report confirmed violations of the zoning regulations to
the City of Durham authorities.
All property shall be used for residential purposes. No portion of the property may be used for
home occupations except as permitted by Regulations of the Association.
No individuals, nor the Association, shall offer or
display goods of any kind, including garden produce, for sale along Erwin
Road or Randolph Road.
The Association prohibits the Ownership of nay unit
in SOLTERRA solely for rental purposes by Owners who do not reside at
Solterra. However, Owners may lease a room or rooms in
their unit to housemates, caretakers or the like. In addition, nay Owner may lease their entire unit during their
temporary absence. An Owner may
construct a home for future use and rent it during an interim period not
to exceed a period of two (2) years which may be extended by the Association. All Owners shall provide the Association with
a copy of any lease agreement between the Owner and any Lessee. (At the Owner’s discretion, financial amounts
noted in any such agreement may be obscured.) In all cases, Lessees shall be profvid4ed with a copy of this Declaration,
the Homeowners Association Bylaws and regulations prior to signing a lease
and shall be bound by all provisions of these documents.
No boats, trailers, campers, house trailers, recreation
vehicles, commercial trucks, or temporary building shall be permitted
on any Lot nor on any common property including roads and parking areas
except for passage and temporary periods for loading or unloading. Such vehicles must be stored off-site unless
the Association establishes an on-site area with regulations for its availability
and use. However, house trailers,
temporary building and the like shall be permitted for construction purposed
during construction periods at any place deemed necessary for the construction
of residential structures.
No lumber, brick, stone, cinder block, concrete or
any other building materials, scaffolding, mechanical devices or any other
thing used for building purposes shall be stored on any Lot in an exposed
location except for the purpose of construction on such Lot and shall
not be stored on such Lot for longer than the length of time reasonably
necessary for the construction in which same is to be used. After the issuance of any Certificates of Occupancy, care shall
be exercised to maintain all building areas as safe for children, including
the construction of fences if necessary.
No tanks will be permitted for the storage of fuel
or water or any other substance. Boxes,
binds, or containers for trash, recyclable materials or for composting
vegetable matter shall be screened from view from Common Areas or adjoining
Lots.
Section 6. Motor Vehicles
No motor vehicles that are not functional and currently
licenses may be parked or stored outside an enclosed building for more
than thirty days (30) within the community. No motorcycles, mini bikes, trail bikes or other motor powered
leisure vehicles may be operated off designated roadways within any Common
Area. Guests and clients of residents shall park
on established parking areas or on resident’s driveways. Parking will not be permitted on roads at any
time. Parking on the shoulders
of the roads will be permitted in unusual circumstances with prior notification
to the Association.
Section 7. Hobbies and
Activities
The pursuit of hobbies or other activities, including
specifically, without limiting generality of the foregoing, the assembly
and disassembly of motor vehicles and other mechanical devices, which
might ten to cause disorderly, unsightly or unkempt conditions, shall
not be pursued or undertaken on any part of any Lot at locations where
they can be viewed from any street or upon any portion of the Common Areas.
Section 8. Animals and
Pets
Household pets shall be welcomed into the community. All community Members shall be bound by the
Animal Control Ordinance and the Health and Sanitation Ordinance of the
City of Durham as the Ordinances are from time to time amended. Community Members shall also be bound by additional
regulations of the Association, which may be stricter than the City of
Durham Ordinance.
Section 9. Prohibited Activities
Noxious, offensive or loud activities shall not be
carried on upon any Lot or upon the Common Area. Each Owner shall refrain from any act or use of his Lot which could
reasonably cause annoyance or nuisance to the neighborhood. All community Members shall be bound by the
Noise Ordinances (Chapter 11 of the Health and Sanitation Ordinance) of
the City of Durham. Community
Members shall also be bound by additional regulations of the Association,
which may be stricter than the City of Durham ordinances.
Section 10. Preservation
of Natural Areas
Each Owner shall keep and maintain his/her Lot in a
neat orderly and well-kept manner. In
order for the natural, undeveloped areas of the community to remain in
the most natural condition, residents agree to abide by regulations and
guidelines pertaining to use and maintenance of Common Areas adopted by
the Association.
Section 11. Environmental
Control
In order to avoid placing hazardous or toxic wastes
under living quarters and in the ground, the use of persistent herbicides
or pesticides shall be prohibited upon any Lot or Common Area except as
may be necessary as treatment for termites and other wood destroying insects
and then only local treatment, not for general foundation treatment unless
such general foundation treatment is required by the City of Durham or
participating financing institution, shall be permitted or allowed. All houses shall be built with metal termite shields between all
wood Members and masonry or other foundation materials, and house shall
be built in such a manner that a visual inspection may ascertain with
surety whether or not any termite presence has evaded the termite shields. No herbicide or pesticide may be used in SOLTERRA,
except as required above in this section, other than those substances
contained on an approved substances list compiled by a statewide organic
certification program such as, but no limited to, the Carolina Farm Stewardship
Association, or as contained on the Nati0onal List, when adopted, developed
by the National Organic Standards Board and promulgated by the US Secretary
of Agriculture. Whenever possible
the least toxic method of control will be used first, but spot use of
non-persistent herbicides an pesticides is allowed if necessary to eradicate
poison ivy, poison oak and kudzu or insects which pose an imminent threat
to residents.
Section 12. Firearms and
Other Weapons
The residents of SOLTERRA are working to create a safe
and trusting community. Firearms
and other weapons are associated with great dangers. Therefore, any weapon including BB guns, slingshots, hunting bows
and arrows may not be carried on common property. Firearms on Owners property must be unloaded and locked in a cabinet.
Section 13. Wildlife Protection
Regardless of governmentally designated seasons, there
shall be no hunting of birds, mammals, reptiles or amphibians on this
property. In recognition that
many invertebrate species are important to the functioning of the natural
environment, as food supplies for larger species, and for human enjoyment
of the land, no pesticide or insect traps may be used which are not capable
of being targeted at particular populations or species dangerous or annoying
to residents. However, wildlife
clearly threatening or endangering residents may be controlled in any
practical manner.
Section 14. Fire Hazards
Because of close proximity and obvious fire hazard,
readily flammable materials shall not be allowe4d to accumulate, nor used
for mulch or decoration, within three (3) feet of any flammable structure. Flammable liquids shall be kept only in approved
containers. All containers for
fires or sites for fires, including chimneys and grills shall be fitted
with spark screens or other suitable means of fire control, except as
follows in this section. There
shall be no burning (including leaves and other vegetation) outside such
proper containers unless a proper Forestry Service or other governmental
agency permit is obtained first or the burning is done under the supervision
of a professional crew or a fire department trained and knowledgeable
in the method of outdoor burning. The burning of wood, coal, charcoal, gas, or
oils in furnaces, grills, stoves, fireplaces, or other containers which
are safely designed for the burning thereof is specifically allowed. All fireplaces or stoves designed to burn wood,
grain, manufactured pellets, or other materials must be equipped with
a catalytic device to provide secondary combustion of smoke or be otherwise
so designed to reduce air pollution. The burning of artificial logs containing petroleum products is
prohibited.
Section 15. Governmental
Regulations
All state and local building, electrical, plumbing
and mechanical codes, health regulations, zoning restrictions, permit
procedures and the like applicable to the Properties shall be observed. In the event of any conflict between any provision
of such governmental code, regulation or restriction and any provision
of this Declaration, the more restrictive provision shall apply.
ARTICLE
IX. GENERAL PROVISIONS
Section 1. Resolution of
Disagreements
Any resident who feels that another resident is violating
the intent or spirit of these regulations should first bring the cause
of concern to the resident causing the condition. If this step does not bring relief, the matter should be taken
to the Governing Body of the Association which will determine the nature
and extent of the problem and make suggestions for relief. Any resident who does not agree with the recommendations or actions
of a committee should first discuss the cause of concern with the committee. If this does not bring relief, the matter should
be taken to the Governing Body of the Association which will determine
the nature and extent of the disagreement and make suggestions for relief.
Section 2. Enforcement
The Association or any Owner shall have the right to
enforce, by any proceeding at law or in equity, all restrictions, conditions,
covenants, reservations, liens and charges now or hereafter imposed by
provisions of this Declaration. Failure
by the Association or any Owner to enforce any covenant or restriction
herein contained shall in no event be deemed a waiver of the right to
do so thereafter.
Section 3. Severability
Invalidation of any one of these covenants or restrictions
by judgment or court order shall in no wise affect any other provisions
which shall remain in full force and effect.
Section 4. Amendment
The covenants, conditions and restrictions of this
Declaration shall run with an d bind the land, for a term of twenty (20)
years from the date this declaration is recorded, after which time they
shall be automatically extended for successive periods of ten (10) years. Amendments to this Declaration shall be approved
by consensus, or, failing this, may be amended during the first twenty
(20) year period by an instrument approved by not less than eight-five
*85) percent of the Lot Owners, and thereafter by an instrument approved
by not less than seventy-five percent (75%) of the Lot Owners. Any amendment must be recorded.
Section 5. Amendment Form
If any amendment to these covenants, conditions and
restrictions is so approved, each such amendment shall be delivered to
the Governing Body of the Association. Thereupon, the Governing Body of the Association shall within thirty
(30) days, do the following:
Reasonably assure itself that the amendment has been
validly approved by consensus of the Owners or, failing that, by the Owners
of the required number of Lots. (For
this purpose, the Board may rely on its roster of Members and shall not
be required to cause any title to any Lot to be examined).
Attach to the amendment a certification as to its validity,
which certification shall be executed by the Association in the same manner
that deeds are executed.
Immediately, and within the thirty (30) day period
aforesaid, cause the amendment to be recorded in the Durham County Registry.
All amendments shall be effective from the date of
their recordation in the Durham County Registry, provided, however, that
no such instrument shall be valid until it has been indexed in the name
of the Association. When any instrument
has been certified by the Governing Body of the Association, recorded,
and indexed as provided by this Section, it shall be conclusively presumed
that such instrument constitutes a valid amendment as to all persons thereafter
purchasing any Lots.
Any amendment of a material nature to this document
shall require assent by eligible mortgage holders who represent at least
fifty-on (51) percent of the votes of unit estates that are subject to
mortgages held by eligible holders. A
change to any of the provisions governing the following would be considered
material and include but are not limited to: voting rights; increases in assessments that raise the previously
assessed amount by more than twenty-five (25) percent, assessment liens,
or the priority of assessment liens; reduction in reserves for maintenance,
repair and replacement of common elements’ responsibility for maintenance
and repairs; reallocation of interests in the general or limited common
elements, or rights to their use; redefinition of nay unit boundaries;
convertibility of units into common elements or vice versa; expansion
or contraction of the project, or the addition, annexation, or withdrawal
of property to or from the project; hazard or fidelity insurance requirements;
imposition of any restriction on the leasing of units; imposition of any
restriction on a unit Owner’s right to sell or transfer his or her unit;
restoration or repair of the project (after damage or partial condemnation)
in a manner other than that specified in the documents.
Section 6. Contract Rights
of Association
Any contract entered into by or on behalf of the Association
shall contain the provision giving the Association or the other party
thereto the right to terminate such contract up9on the giving of not more
than ninety (90) days written notice to the other party or parties.
Section 7. Lender’s Notice
Upon written request to the Association, identifying
the name and address of the holder, insurer or guarantor and the Lot number
or address, any mortgage holder, insurer, or guarantor will be entitled
to timely notice of:
Any condemnation or casualty loss that affects either
a material portion of the project or the Lot securing its mortgage
Any sixty (60) day delinquency in the payment of assessments
owed by the Owner of the Lot on which it holds the mortgage
A lapse, cancellation, or material modification of
nay insurance policy or fidelity bond maintained by the Associati0on
Any proposed action that requires the consent of a
specified percentage of mortgage holders
The Association’s financial statement for the immediately
preceding fiscal year.
Section 8. FHA/VA/FNMA
Approval
In such cases where the following actions shall have
any impact on the lenders’ rights or privileges, the following actions
will require the prior appr4oval of the Federal Housing Administration,
the Veterans Administration or the Federal National Mortgage Association
or successor agencies with the same powers if such agencies hold an interest
in loans on any property in the Project; Annexation of additional Properties,
dedication of the Common Area, deeding in trust the Common Area; mergers
and consolidations and amendments of a material nature to this Declaration.
Section 9. Termination
of Legal Status
Any action to terminate the legal status of the project
after substantial destruction or condemnation occurs must be agreed upon
by unit Owners who represent at least 85% of the total allocated votes
in the Association and by eligible mortgage holders who represent at least
fifty-one (51) percent of the votes of the unit estates that are subject
to mortgages held by the eligible holders. Termination of the legal status of the project for reasons other
than substantial destruction or condemnation of the property must be agreed
to by mortgage holders that represent at least sixty-seven (67) percent
of the votes of the mortgaged units.
Section 10. Implied Approval
by Mortgage Holders
Required approval by any mortgage holder under this
Article may be assumed when an eligible mortgage holder fails to submit
a response to any written proposal for an amendment within thirty (30)
days after it receives proper notice of the proposal, provided the notice
was delivered by certified or registered mail, with a “return receipt”
requested.
Section 11. Names of Mortgage
Holders
The Association may regularly canvass the Owners to
determine the names of mortgage holders, insurers, guarantors, and the
Owners shall provide such information.
Section 12. Decision Affecting
Unsold Lots
In any matter materially affecting the financial or
legal interests of the Declarant in unsold Lots the Declarant shall have
the authority to make decisions under it usual procedures. It may assign authority to the Association in particular cases.
IN WITNESS WHEREOF, THE UNDERSIGNED, BEING THE Declarant
Herein, has hereunto set its hand and seal this 31st day of
October, 1996.
EXHIBIT
“A” TO SOLTERRA COMMUNITY DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
Beginning at a stake situated at the intersection of the southeastern right-of-way line of Erwin Road and the western right-of-way line of Randolph Road, both 60 foot wide public right-of-ways; thence with the western right-of-way line of said Randolph Road South 20°11’35” East 113.03 feet to a stake, South 20°05’12’’ East 468.61 feet to a stake, and South 19°17’38” East 330.47 feet to a stake, corner of property of Worth H. Whitfield, Jr.; thence with the Whitfield lines South 70°45’00” West 589.31 feet to a stake and South 03°03’12” West 128.36 feet to a stake, the southwestern corner of Whitfield in the northern line of Duke University; thence with the Duke University line the following three (3) calls: North 85°35’40” West 328.21 feet to a stake; thence North 84°50’38” West 326.64 feet to a stake; thence North 87°07’48” West 246.48 feet to a stake, being the centerline of an old abandoned road; thence crossing said old abandoned road South 85°24’59” West 139.85 feet to a stake on the southeastern right-of-way line of Erwin Road,; thence along and with the southeastern right-of-way line of Erwin Road the following eight (8) calls: North 36°57’21” East 92.24 feet to a stake; thence North 33°37’31” East 215.21 feet to a stake; thence North 35°07’05” East 52.94 feet to a stake; thence North 38°51’22” East 90.72 feet to a stake where the centerline of the old abandoned road hereinabove referred to intersects the southeastern right-of-way line of Erwin Road; thence continuing with the southeastern right-of-way line of Erwin Road North 52°25’22” East 81.26 feet to a stake and North 54 |