DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
THIS DECLARATION is made this 23 day of
January , 2006, by PORTRAIT HOMES-WESTRIDGE LLC, an
Illinois limited liability company (hereinafter referred to as the "Declarant").
W I T N E S S E T H:
WHEREAS Declarant is the owner of the real property in Horry County, South
Carolina, more particularly described in Exhibit A attached hereto, and
Declarant desires to create thereon an exclusive residential community of single
family detached residential units to be named West Ridge Owners
WHEREAS, Declarant desires to insure[sic] the
attractiveness of the community, to prevent any future impairment thereof, to
prevent nuisances, to preserve, protect and enhance the appearance and amenities
of all properties within the community and to provide maintenance and upkeep of
the exterior of all residential units and the Common Areas, as hereinafter
defined, and to this end, desires to subject the real property shown upon the
attached Exhibit A, to the coverage of the covenants, conditions, restrictions,
easements, charges and liens hereinafter set forth, each and all of which is and
are for the benefit of said property described below, and each Owner and
occupant thereof; and
WHEREAS, the Declarant has deemed it desirable, for the efficient
preservation, protection and enhancement of the appearance and amenities in the
community and to provide for the maintenance and upkeep of the Common Area, to
create an organization to which will be delegated and assigned the powers of (i)
owning, maintaining and administering the Common Area; (ii) maintaining the
improvements which are the responsibility of the Association; (iii)
administering and enforcing the covenants, conditions, and restrictions herein;
(iv) collecting and disbursing the assessments and charges hereinafter created;
and (v) performing all other activities as required or permitted hereunder.
WHEREAS, Declarant has incorporated or will incorporate under South Carolina
law, West Ridge Owners Association, Inc., as a non-profit corporation for
the purpose of exercising the aforesaid functions.
NOW, THEREFORE, Declarant hereby declares that all of the Properties,
described in Article I, Section I below, and such additions thereto as may be
hereafter made pursuant to Article I, Section 2 hereof, shall be held, sold and
conveyed subject to the following easements, restrictions, covenants and
conditions, which are for the purpose of protecting the appearance and
desirability of, and which shall run with, the Properties and be binding on all
parties having any right, title or interest in the Properties or any part
thereof, their heirs, successors and assigns, and shall inure to the benefit of
each Owner thereof.
PROPERTIES SUBJECT TO THIS DECLARATION
Section One. Existing Property.
The real property which is and shall be held, transferred, sold, conveyed and
occupied subject to this declaration and within the jurisdiction of the
Association is more particularly described in Exhibit A, which is attached
hereto and incorporated herein by reference ("Properties").
Section Two. Additions to Existing Property.
Additional land may be brought within the scheme of this Declaration in the
(a) Additional land may be annexed to the
existing property by Declarant, in future stages or development, without the
consent of any other Owner or any mortgagee, provided that said annexations must
occur within seven (7) years after the date of this Declaration. Declarant may
remove all or any property from the Exhibit A description by filing a written
declaration of removal in the County Public Registry;
(b) The additions authorized under Subsection
(a) above shall be made by filing of record a Supplement to Declaration of
Covenants, Conditions and Restrictions with respect to the additional land,
which shall extend the scheme of this Declaration to such properties and thereby
subject such additions to the benefits, agreements, restrictions and obligations
set forth herein.
Section Three. Replatting.
Declarant shall have and hereby reserve the right, at any time or from time to
time, to file a replat of all or any part of the Properties owned by Declarant
to affect a reconfiguration of any Lots or Common Area in the Properties,
subject to any necessary approval, joinder or consent of the appropriate county
and/or municipal authorities.
Section One. "Association" shall mean and refer to West
Ridge Owners Association, Inc., its successors and assigns.
Section Two. "Owner" shall mean and refer to the record
owner, whether or more persons or entities, of a fee simple title to any Lot
which is a part of the Properties, including contract sellers, but excluding
those having any interest merely as security for the performance of an
Section Three. "Properties" shall mean and refer to
that certain real property hereinbefore described in Article I, and such
additions thereto as may hereafter be brought within the jurisdiction of the
Section Four. "Lot" shall mean and refer to any plot
of land shown upon the attached site plan or approved final plat, as reasonably
amended by Declarant from time to time, with the exception of the Common Area,
and shall include all improvements (including residential units) thereon. Each
plot of land is the area for one (1) residential unit, designed for single
Section Five. [Changed by Amendment
2] "Declarant" shall mean and refer to THG Partners, LLC, a South
Carolina Limited Liability Company, its successors and assigns, if such
successors or assigns should acquire all of the Declarant's interest in the
Section Six. "Common Area" shall mean all fixtures,
real property and personal property owned by the Association for the common use
and enjoyment of the Owners. Common Areas, with respect to the property subject
to this Declaration shall be shown on the various plats of West Ridge recorded
or to be recorded in the County Public Registry and designated thereon as
"Common Areas", but shall exclude all Lots as herein defined and all public
streets shown thereon. "Common Area" shall include but not limited to, the (i)
completed permanent detention or retention pond(s); (ii) private water lines and
sewer lines; (iii) all private streets shown on said plats as now recorded or
shall be hereinafter recorded in the County Public Registry; (iv) street
lighting and (v) pool amenity (recreational facilities). The Common Area to be
owned by the Association at the time of the conveyance of the first Lot is more
particularly shown on the plat(s) of the Properties to be recorded in the County
Section Seven. "Board of Directors" shall mean and
refer to the Board of Directors of the Association.
Section Eight. "Member" shall mean and refer to an
Owner who holds membership in the Association pursuant to Article IV of this
Section Nine. "County Public Registry" shall mean and
refer to the office of the Register[sic] of Deeds of
Horry County, South Carolina.
Section Ten. [Added by Amendment 2]
"Approved Builder" shall mean and refer to D.R. Horton, Inc.
Section One. Owners Easements of Enjoyment.
Every Owner shall have a right and easement of enjoyment in and to the Common
Area, which shall be appurtenant to and shall pass with the title to every Lot,
subject to the following provisions:
(a) The right of the Association to charge
reasonable admission and other fees for the use of any facility situated upon
the Common Area.
(b) The right of the Association to suspend the
voting rights and right of use of the recreational facilities by the Owner: (1)
during any period for which the Owner is delinquent in the payment of applicable
assessments; (2) for a period not to exceed sixty (60) days for any infraction
of its published rules and regulations; and (3) during any period that an Owner
is otherwise in default of the Owner's obligations under the Declaration,
including but not limited to the obligation to comply with the architectural
control provisions and protective covenants and restrictions contained herein.
(c) The right of the Association to mortgage,
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 by the Members. No such mortgage, dedication, or transfer shall be
effective unless an instrument signed by two-thirds (2/3) of each class of
Members agreeing to such dedication or transfer has been recorded;
(d) The right of Owners to the exclusive use of
parking spaces as provided in this Article.
(e) The right of the Association to limit the
number of guests of Members;
(f) The right of the Association, in accordance
with its Articles and Bylaws, to borrow money for the purpose of improving the
Common Area and facilities and in aid thereof to mortgage said property, and the
rights of such mortgagee in said properties shall be subordinate to the rights of
the Owners hereunder;
(g) The right of the Association to adopt,
publish and enforce rules and regulations as provided in Article IX;
(h) The right of the Association or its
representative to enter any Lot in order to perform any maintenance, alteration
or repair required herein to be performed by the Association, and the Owner of
such Lot shall permit the Association or its representative to enter for such
purpose at reasonable times and with reasonable advance notice;
(i) The right of the Association or its
representative to enter any Lot in the case of any emergency threatening such
Lot or any other Lot for the purpose of remedying or abating the cause of such
emergency. Such right of entry shall be immediate and shall not require prior
(j) The rights of the Declarant reserved in
Article X and Article XI of this Declaration and the Special Declarant Rights.
Section Two. 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 depicted on maps of the Properties to the
Association, free and clear of all encumbrances and liens, except those
encumbrances and liens set forth in this Declaration, utility easements, and
storm drainage easements. Following conveyance of Common Area to the
Association, Declarant shall be entitled to a prorata credit for all expenses of
the Association incurred by Declarant (including insurance and real estate
taxes), which have not theretofore been reimbursed to Declarant. The Common
Area shall be conveyed without any express or implied warranties, which
warranties are hereby expressly disclaimed by Declarant.
Section Three. Parking Rights. The automobile parking spaces
for Lots shall be the garage and the appurtenant driveway. Owners hereby
consent to and authorize the Association to tow any vehicle that is parked in
violation of this Declaration or rules and regulations of the Association.
Section Four. TV Antennas and Cablevision. The Association
may provide one or more central television antennas for the convenience of the
Members and may supply cablevision and the cost of these may be included in
annual or special assessments.
MEMBERSHIP, VOTING RIGHTS, AND PURPOSES
Section One. Every Owner shall be a Member of the
Association. Membership shall be appurtenant to and may not be separated from
ownership of any Lot.
The Association shall have two classes of voting
Class A. Class A Members shall be all Owners
with the exception of the Declarant and shall be entitled to one (1) vote for
each Lot owned. When more than one person holds an interest in any Lot, all
such persons shall be Members. The vote for such Lot shall be exercised as they
among themselves determine, but in no event shall more than one vote be cast
with respect to any Lot.
Class B. The Class B Member(s) shall be the
Declarant and shall be entitled to six (6) votes for each Lot owned. The Class
B membership shall cease and be converted to Class A membership on the happening
of either of the following events, whichever occurs earlier:
(a) when eighty five percent (85%) of the
Lots on the Properties are deeded to persons other than Declarant or
Declarant's affiliate; or
(b) seven (7) years after the later of the
following: the date this Declaration is recorded in the County Pblic
Registry or the date any amendment adding additional real estate is
Section Three. Until the Blass B Members are converted to
Class A Members, Declarant is entitled to appoint all Board of Directors
members, and the Association need not hold a meeting to elect directors until
conversion of the Class B Members.
Section Four. The Association shall have the right, duty and
responsibility to: (i) acquire, administer, maintain and care for the Common
Area; (ii) administer, maintain and care for extermination and trash removal
services; (iii) establish, levy and collect assessments; (iv) engage
contractors, vendors, employees or agents as it deems necessary to carry out all
rights, duties and responsibilities; (v) make payment to contractors, vendors,
employees or agents for services provided in carrying out the purposes of the
Association; (vi) enforce this Declaration; and (vii) perform all rights, duties
and responsibilities set forth in the Declaration, Articles and Bylaws of the
COVENANT FOR MAINTENANCE ASSESSMENTS
Section One. Creation of the Lien and Personal Obligation
Each Owner of any lot by acceptance of a deed therefor, whether or not it shall
be so expressed in such deed, is deemed to covenant and agree to pay to the
Association: (1) annual assessments or charges, and (2) special assessments,
such assessments to be established and collected as hereinafter provided. The
annual and special assessments, together with interest, late charges, costs and
reasonable attorney's fees, shall be a charge on the Lots and shall be a
continuing lien upon the Lots against which each such assessment is made. Each
such assessment, together with interest, late charges, costs and reasonable
attorney's fees, shall also be the personal obligation of the person who was the
Owner of such Lot at the time when the assessment fell due. The personal
obligation for the delinquent assessment shall not pass to his or her successors
in title unless expressly assumed by them. If the Association should be
dissolved or cease to exist, then in that event, every Owner of a Lot at the
time of required maintenance shall be jointly and severally liable for any and
all costs attendant thereto.
Section Two. Purpose of Assessments.
The assessments levied by the Association shall be used exclusively to promote
the recreation, health, safety and welfare of the residents of the Properties
and in particular for: (1) the improvement, maintenance, repair and
reconstruction of the Common Areas and the landscaping on the Lots; (2) the
maintenance, repair and reconstruction of (a) private water and/or sewer lines
(and any meters or lift stations associated therewith), (b) any pond (detention
or retention), (c) pool and pool house, (d) private streets, (e) street lights,
entry monuments, perimeter fences, walks, and parking areas and such maintenance
to include the cutting and removal of weeds and grass, the removal of trash and
rubbish or any other maintenance and (f) irrigation system; (3) the use and
enjoyment of the Common Area, including, but not limited to, the cost of
repairs, replacements and additions; (4) the cost of labor, equipment,
materials, management and supervision; (5) the payment of taxes and public
assessments assessed against the Common Area; (6) the employment of attorneys to
represent the Association when necessary; (7) the provision of adequate reserves
for the replacement of capital improvements, including, without limiting the
generality of the foregoing, roofs, paving, and any other major expense for
which the Association is responsible; (8) extermination services; (9) contract
for trash removal for the Lots; and (10) such other needs as may arise.
[Added by Amendment 2:] (11) Notwithstanding anything
contained in this Declaration to the contrary, the Association shall not be
obligated to provide landscaping or extermination services on each Lot and the
general annual assessments collected by the Association from the date of this
Amendment shall not be used to provide landscaping or extermination services for
an Owner's Lot. However, the Association may offer these services to an Owner
and an Owner may accept such services upon payment of a Special Assessment in an
amount to be determined by the Board.
Section Three. Reserves.
The Association shall establish and maintain an adequate reserve fund for the
periodic maintenance, repair, and replacement of improvements to the Common
Areas, and those other portion of properties which the Association may be
obligated to maintain, and for unusual and unforeseen expenses of the
Association. Such reserve fund is to be established, insofar as practicable,
out of annual assessments for the common expense. Further, the reserve fund may
be applied to operational deficits provided adequate reserves are
Section Four. Maximum Annual Assessment.
Until January 1 of the year immediately following the conveyance of the first
Lot to an Owner, the maximum annual assessment shall be One Thousand Six Hundred
Dollars ($1,600.00) per Lot (except that pursuant to Section Seven of this
Article, the maximum annual assessment for Lots owned by Declarant which are not
occupied as a residence shall be Four Hundred Dollars ($400.00 per Lot).
[Next sentence added by Amendment 2:]
Lots owned by the
Approved Builder shall be subject to the cap on Assessments equal to that of the
(a) From and after January 1 of the year
immediately following the conveyance of the first Lot to an Owner, the maximum
annual assessment may be increased by the Board of Directors effective January 1
of each year without a vote of Membership, but subject to the limitation that
any such increase shall not exceed the greater of twenty percent (20%) or the
percentage increase in the Consumer Price Index (published by the Department of
Labor, Washington, D.C.) for all cities over preceding twelve (12) month period
which ended on the previous October 1).
(b) From and after January 1 of the year
immediately following the conveyance of the first Lot to an Owner, or until
increased as provided for in (b) or (c) below, whichever last occurs, the
maximum annual assessment may be increased above the increase permitted in
Section 4(a) above by a vote of two-thirds (2/3) of each class of Members who
are voting in person or by proxy, at a meeting duly called for this purpose.
(c) The Board of Directors may fix the monthly
assessment at an amount which shall not exceed one twelfth (1/12) of the maximum
Section Five. Special Assessments.
In addition to the annual assessments authorized above, the Association may levy
in any assessment year a special assessment applicable to that year for the
purpose of supplying adequate reserve funds for the replacement of capital
improvements; for defraying, in whole or in part, the cost of any construction,
reconstruction, restoration, repair or replacement of a capital improvement upon
the Common Area or upon a Lot, and in connection with exterior maintenance,
including fixtures and personal property related thereto; for insurance costs of
the Association; or for unusual, unforeseen and non-recurring expenses of the
Association, provided that any such shall have the assent of the Board of
Directors by a vote called at a duly authorized public meeting. Any special
assessment affecting or benefitting only particular Lots shall be equitably
apportioned, by the Board, among the Lots affected or benefited.
Section Six. Notice and Quorum for any Action Authorized
Under Section Four.
Written notice of any meeting called for the purpose of taking any action
authorized under Section Four shall be sent to all Members no 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 of proxies entitled to cast
fifty percent (50%) of all votes of each class of Membership shall constitute a
quorum. If the required quorum is not present, another meeting may be called
subject to the same notice requirement, 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 sixty
(60) days following the preceding meeting.
Section Seven. Uniform Rate of Assessment.
Both annual and special assessments shall, except as herein otherwise
specifically provided, be fixed at a uniform rate for all Lots and shall be
collected on a monthly basis. Provided, however, that the assessment for Lots
owned by Declarant which are not occupied as a residence, shall at all times be
twenty-five percent (25%) of the assessments for other Lots.
[Added by Amendment 2:] Lots owned by the Approved Builder
shall be subject to the cap on Assessments equal to that of the Declarant.
Section Eight. Date of Commencement of Annual Assessments:
[This section replaced by Amendment 2]
The annual assessments provided for herein shall commence as to each Lot on the
date such Lot is conveyed by either the Declarant or the Approved Builder to a
third-party purchaser for occupancy. Prior to conveying to such third-party
purchaser for occupancy, Declarant and Approved Builder shall commence paying
twenty five (25%) percent of the regular assessments for all Lots upon which
either Declarant or Approved Builder has received a permit to construct a
residential dwelling upon a Lot. Such annual assessments shall be paid ratably
on a monthly basis. The Board of Directors 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 dates shall be established by the Board of
Directors. The Association shall, upon demand, and for a reasonable charge,
furnish a certificate signed by an officer of the Association setting forth
whether the assessments on a specified Lot have been paid. Non-related entity
means an entity, which is not owned, managed, or operated by any common
Section Nine. Effect of Nonpayment of Assessments;
Remedies of the Association.
A late charge of Twenty Five and No/100 Dollars ($25.00) shall be added to any
assessment not paid within fifteen (15) days after the due date, together with
interest from the due date at eight percent (8%) per annum. The Association may
bring an action at law against the Owner personally obligated to pay the same or
foreclose the lien against the property, and in either event: interest, costs,
and reasonable attorney's fees of any such action shall be added to the
assessment. No Owner may waive or otherwise escape liability for the
assessments provided for herein by non-use of the Common Area or abandonment of
his or her Lot.
Section Ten. Subordination of the Lien to Mortgages and Ad
The lien of the assessments provided for herein shall be subordinate to the lien
of any first mortgage and ad valorem taxes. Sale or transfer of any Lot shall
not affect the assessment lien. However, the sale or transfer of any lot
pursuant to mortgage or tax foreclosure or any proceeding in lieu thereof shall
extinguish the lien of such assessments as to payments, which became due prior
to such sale or transfer. No such sale or transfer shall relieve such Lot from
liability for any assessments thereafter becoming due or from lien
Section Eleven. Working Capital Fund.
[This section replaced by Amendment 2]
Upon acquisition of record title to a Lot by the first Owner thereof, other
than Declarant or Approved Builder, a payment shall be made by or on behalf of
the purchaser to the working capital of the Association in an amount equal to
Five Hundered and no/100 ($500.00) Dollars per Lot . This amount shall be in
addition to, not in lieu of, the general Assessment attributable to said Lot,
and shall not be considered an advance payment of such assessment. This amount
shall be deposited into the purchase and sales escrow at closing and disbursed
therefrom to the Association. The Association shall deposit this amount into
the operating account of the Association for use in covering operating expenses
and other expenses incurred by the Association pursuant to this Declaration and
the By-Laws, including but no[sic] limited to expenses
incurred by Declarant in providing infrastructure or other Common Area to the
Community. This amount may be increased or decreased in the sole and exclusive
discretion of the Board; provided, however, that in no event shall this initial
contribution equal more than the annual Assessment for the year in which the
acquisition of title by the first Owner, other than Declarant or Approved
Section Twelve. Default by the Association.
Upon default by the Association in the payment to the jurisdiction entitled
thereto of any assessments for public improvements or ad valorem taxes levied
against the Common Areas, which default shall continue for a period of six (6)
months, each Owner of a Lot shall become personally obligated to pay the
jurisdiction a portion of the taxes or assessments in an amount determined by
dividing the total taxes and/or assessments due to the jurisdiction by the total
number of Lots in the Properties. If the sum is not paid by the Owner within
thirty (30) days following receipt of notice of the amount due, the sum shall
become a continuing lien on the property of the Owner, his or her heirs,
devisees, personal representatives, and assigns. The taxing or assessing
jurisdiction may either bring an action at law against the Owner personally
obligated to pay the same, or may elect to foreclose the lien against the
property of the Owner.
[Amendment 2 changed the first sentence.]
In addition to its obligation to maintain the Common Area, the Association may
provide exterior maintenance upon each Lot upon the payment by an Owner of a
Special Assessment, as follows: landscaping and extermination services.
Further, the Owner of any Lot may, at his or her election, plant flowers in the
front and rear beds established by Declarant in developing the Lot, provided
that such maintenance by the Owner does not hinder the Association in performing
its maintenance of the exterior of the residential unit and the remaining yard
spaces. No maintenance by an Owner shall reduce the assessment payable by him
or her to the Association. The Owner shall not plant any vegetation in the
front yard except with the prior written approval of the Association.
In the event that the need for maintenance or repair is caused through the
willful or negligent act of the Owner, his or her family, or guests, or
invitees, the cost of such maintenance or repairs shall be added to and become a
part of the assessment to which such Lot is subject, which is not subject to any
maximum. The Association is hereby granted an easement right of access to go
upon any Lot for performance of repairs or maintenance, the responsibility of
which is the Association's hereunder.
Subject to the provision of the Declaration as expressly set forth in the
obligations of this Assocation, all maintenance, repair or replacement of the Lot
and all structures, and other improvements located within the Lot shall be the
sole responsibility of the Owner thereof who shall perform such maintenance in a
manner consistent with the community and the applicable provisions of this
No landscaping, building, fence, sign, wall, antenna, satellite dish, or
other structure or improvement shall be commenced, erected, or maintained upon
the Properties, nor shall any exterior addition to or change or alteration
therein (including, but not limited to, color or painting or the exterior and
type of exterior finish, any existing or builder-installed construction
material, plant material or ground cover) be made, except in exceptional cases,
when in such case, three copies of the plans and specifications showing the
nature, kind, shape, height, materials, and location of the same shall have been
submitted to and approved in writing as to harmony of external design and
location in relation to surrounding structures and topography by the Board of
Directs of the Association, or by an architectural committee composed of three
(3) or more representatives appointed by the Board (said committee being
hereinafter referred to as the "Architectural Control Committee"). Absent such
approval, the proposed improvement may not be commenced.
In the event an Owner of any Lot in the Properties shall make unauthorized
changes to the premises and the improvements situated thereon in a manner
unsatisfactory to the said Board of Directors or the Architectural Control
Committee, said Board of Directors or the Architectural Control Committee shall
have the right, through its agents and employees, to enter upon said Lot and to
repair, maintain and restore the Lot and the exterior of the buildings and any
other improvements erected thereon. The cost of such restoration and exterior
maintenance and any other costs or attorney's fees incurred in the enforcement
of the rights under these provisions shall be added to and become a part of the
assessments to which such Lot is subject. Any approval by the said Board of
Directors or the Architectural Control Committee shall be in accordance with the
requirements set forth hereafter, and must be in writing.
[Added by Amendment 2] Notwithstanding anything
contained herein to the contrary, the Approved Builder shall not be required to
obtain approval from the Board of Directors or the Architectural Control
Committee prior to commencing construction of a single family residence on a
Lot, provided the plans have been approved by the Declarant.
Insurance coverage on the Property shall be governed by the following
(a) Ownership of Policies.
All insurance policies upon the Common Areas shall be purchased by the
Association for the benefit of all the Association. Owners of Lots with
detached residential units understand that they shall be obligated to obtain all
insurance policies as it relates to those Lots and the detached residential
units constructed thereon, including but not limited to: (i) their own personal
property (ii) buildings and improvements to their Lot (iii) their personal
liability and (iv) living expense and such other coverages, as they may desire.
All buildings and improvements upon the Common Area and Lots and all personal
property of the Association included in the Common Areas and facilities shall be
insured in an amount equal to one hundred percent (100%) insurable replacement
value. Such coverage shall provide protection against:
- Loss or damage by wind, flood, fire, and other hazards covered by a
standard extended coverage endorsement as appropriate.
- Such other risks as from time to time shall be customarily covered with
respect to buildings on the land; and
- Such policies shall contain clauses providing for waiver of subrogation.
Public liability insurance shall be secured by the Association with limts of
liability of no less than One Million Dollars ($1,000,000) per occurrence and
shall include an endorsement to cover liability of the Association, as
applicable. There shall also be obtained such other insurance coverage, as the
Association shall determine from time to time to be desirable and necessary.
Premiums for insurance policies purchased by the Association shall be paid by
the Association and shall be included as part of the annual assessment described
in Article V above. Premiums for insurance policies purchased by the Owners
shall be their own expense without reimbursement.
All insurance policies purchased by the Association shall be for the benefit of
the Association, and shall provide that all proceeds thereof shall be payable to
the Association as insurance trustee under this 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 purpose stated herein or stated in
Section Two: Fidelity Insurance or Bond.
All persons responsible for or authorized to expend funds or otherwise deal in
the assets of the Association or those held in trust, shall first be bonded by a
fidelity insurer to indemnify the Association for any loss or default in the
performance of their duties in an amount equal to six (6) months assessments
plus reserves accumulated.
Section One. Rules and Regulations for the Common Area.
The Board of Directors of the Association shall have the power to formulate,
publish and enforce reasonable rules and regulations concerning the use and
enjoyment of the Common Areas. Such rules and regulations may provide for
imposition of fines or penalties for the violation thereof, or for the violation
of any of the covenants and conditions contained in this Declaration.
Section Two. Antennas and Satellite Dishes.
No outside radio transmission tower, receiving antenna, or satellite dish shall
be erected by an Owner within the Properties without the prior written approval
of the Architectural Control Committee.
Section Three. Quiet Enjoyment.
No obnoxious or offensive activity shall be carried on upon the Properties, nor
shall anything be done which may be or may become a nuisance or annoyance to the
Minimum Dwelling Size.
The total square footage of the main structure located on a Lot exclusive of
one-story open porches and garages shall not be less than 900 square feet.
Section Five. Nuisances.
No activity deemed noxious or offensive by the Architectural Control Committee
or the Board shall be carried on upon any Lot or within the Common Area, nor
shall anything be done thereon which may be or may become an annoyance or
nuisance to the neighborhood as determined by said Architectural Control
Committee or Board. Examples of such offensive activities shall include, but
to[sic] be limited to, the origination or emissions of
any loud or disturbing noise or vibrations; the maintenance of an auto repair
site, the maintenance of unsightly outdoor storage of personal property
(including toys, motorcycles or other motor vehicles, tricycles, bicycles, wood
piles or other miscellaneous items) on porches, patios, terraces or yards; or
similar unsightly activity not in keeping with the aesthetic character and high
level of appearance of the community. The Architectural Control Committee or
the Board of Directors may establish reasonable rules and regulations for
enforcing the provisions of this Section Five.
Section Six. Parking of Vehicles and Use of Property.
Vehicles shall be parked only in the garages or in the driveways within Lots.
[Next sentence added by Amendment 1] All vehicles
parked on the roads and streets within the development during the hours of 12
a.m. to 6 a.m. shall be subject to being removed by towing services contracted
by the Association without any further notice. Commercial vehicles (for example
school buses, taxis, labor trucks, vehicles with lettering that is not removed
while on the Properties, vehicles with racks and equipment attached thereto and
as further defined in rules and regulations promulgated by the Architectural
Control Committee), tractors, mobile homes, recreational vehicles of all types,
trailers of all types (either with or without wheels), campers, camper trailers,
boats and other watercraft, snowmobiles, all-terrain vehicles, and, boat,
snowmobile and recreational vehicle trailers shall be parked only in garages.
Public emergency vehicles, such as police and fire cars, are permitted at all
times in the Properties. No inoperable vehicles of any kind and no passenger
vehicles or other vehicles not currently licensed shall be parked or stored on
any driveway. No vehicles of any kind shall be repaired or rebuilt anywhere
within a Lot other than within the garage located thereon. The Architectural
Control Committee shall have the right to grant variances from the foregoing
restrictions in cases of hardship which variance shall be granted upon such
terms and conditions and for such duration as the Architectural Control
Committee may determine to be appropriate. Variances shall not inure to the
benefit of subsequent Owners of the Lot. The foregoing restrictions do not
apply to the parking of construction vehicles and trailers during construction
on the Property so long as such vehicles and trailers are parked in accordance
with Association's construction parking regulations. The Lot shall be used for
residential purposes. No garage, outbuilding, or other appurtenant structure
shall be used for residential purposes, either temporarily or permanently, nor
shall any portion of the Property (except as expressly stated in the preceding
sentence) be used except for residential purposes and for purposes incidental or
necessary thereto. Home offices shall be allowed provided it does not create
any traffic other than Owners and Occupants within the Properties. "Residential
purposes" means residing in a Lot for any period of time.
Section Seven. Signs and Visible Areas.
With the exception of signs erected by Declarant pursuant to Article XII hereof,
no sign of any kind whatsoever shall be erected upon or displayed or otherwise
exposed to view on any Lot or any improvement thereon without the prior written
consent of the Board of Directors of the Association. Nothing shall be caused
or permitted to be hung or displayed on the outside or inside of windows (except
inoffensive drapes and curtains) or placed on the outside walls of a Lot or
otherwise outside of a Lot, or any part thereof, and no sign (except those of
the Declarant), awning, canopy, shutter, or television or citizen's band or
other radio antenna or transmitter, satellite dish or any other device or
ornament shall be affixed to or placed on the exterior walls or roof or any part
thereof, or in or on a patio or balcony unless authorized by the Board, and
subject to such rules and regulations as the Board may adopt from time to
Section Eight. Animals.
No animals, livestock or poultry of any kind shall be raised, bred or kept on
any Lot: provided, however, dogs, cats or other household pets may be kept, not
to exceed a total of two (2) such animals, provided they are not kept, bred or
maintained for any commercial purposes. The foregoing limitation on the number
of pets shall not apply to hamsters, small birds, fish or other constantly caged
animals, nor shall it apply to require the removal of any litter born to a
permitted pet to[sic] prior to the time that the animals
in such litter are three (3) months old. If any animal may, in the sole
discretion of the Board of Directors or its designated committee, make an
objectionable amount of noise, endanger the health of the occupants of other
Lots, or otherwise constitute a nuisance or inconvenience to the Owner of other
Lots, such animal shall be removed upon the request of the Board of Directors or
its designated committee. If the owner of such animal fails or refuses to honor
such request, the animal may be removed at the direction of the Board of
Directors. An Owner's failure to remove fecal matter or other solid waste left
in any Common Area or Lot by the animal owned by an occupant of such Owner's Lot
(or their guests or invitees) shall be conclusively deemed to be a nuisance, and
shall subject such Owner to such reasonable penalties as may be determined by
the Association, including without limitation, upon repeated violations, the
removal of such animal as described above. The cost and expense of any removal
of an animal under this Section Eight shall be the sole responsibility of the
Owner of the Lot where the animal was kept (or was brought by a guest or
invitee). In the event that such Owner fails to reimburse the Association for
such cost and expense within twenty-one (21) days after the Association's demand
for reimbursement, such cost and expense shall become part of the annual
assessment against such Lot, and the amount of such cost and expense assessed
against such Lot shall not be counted or considered in determining whether a
maximum assessment has been made against such assessed Lot under Article V,
Section Four of this Declaration.
Section Nine. Control of Pets.
Every person owning or having possession, charge, care, custody or control of
any dog, cat or other uncaged pet shall keep such pet exclusively inside his own
residential unit or inside the confines of such Owner's Lot; provided, however,
that such pet may be off the Owner's Lot if it be under the control of a
competent person and restrained by a chain, leash or other means of adequate
physical control. All Owners must control their pets at all times, whether or
not such Owner is present, in a manner that will prevent any pet from (i) making
noise at objectionable sound levels for extended periods of time, whether
continuously or intermittently, (ii) endangering the health or safety of other
Owners, their families, guests or invitees, or creating fear in other Owners as
to the safety of themselves, their families, guests or invitees, or (iii)
otherwise constituting a nuisance or inconvenience to the Owner(s) of any other
Lot; all of the foregoing as determined by the Association. Any pet identified
by the Association as a potentially dangerous animal constituting an
unreasonable risk or threat to any other Owner or as to other Owners generally,
whether or not such risk or threat is deemed immediate or imminent, or as to the
family, guests or invitees of any Owner or other Owners generally, whether due
to the type, kind or species of such animal, or its size, natural proclivities
or inherent nature, or as a result, whether in whole or in part, of the known
tendencies, habits, disposition or history of such animal, or as a result of the
manner in which such animal generally is supervised and controlled by its owner,
or for any combination of any of the foregoing reasons, shall be subject to such
further restrictions or control as the Association may in its absolute
discretion deem appropriate, which further restrictions or control may include,
without limitation, any one or more of the following additional requirements:
(a) constant restraint of the animal by means of a cage, chain, leash or other
means deemed appropriate and approved by the Association at all times while such
animal is outside an Owner's residential unit, even while such animal is on such
Owner's Lot; (b) limitations on the time periods or durations that such animal
is permitted to be outside of its Owner's residential unit; (c) prohibiting the
animal to be outside at any time without its Owner present; or (d) permanent
removal of the animal from the Property.
Section Ten. Garbage and Refuse Disposal.
No Lot shall be used or maintained as a dumping ground for rubbish, and all
trash, garbage or other waste shall be stored in sanitary containers in
accordance with the rules and regulations of any health and public safety
authority having jurisdiction over the property. The sanitary containers shall
only be placed outside at the earliest the evening before garbage pickup day and
shall be immediately returned inside an enclosed area after garbage has been
picked up. All incinerators or other equipment shall be kept in a clean and
sanitary condition. No trash, garbage or other waste may be placed within the
Common Area, except in containers approved by the Board of Directors.
Section Eleven. Oil and Mining Operations.
No oil drilling, oil development operations, oil refining, quarrying or mining
operations of any kind shall be permitted upon or in any Lot, nor shall oil
wells, tanks, tunnels, mineral excavations or shafts be permitted upon any Lot
or within the Common Area. No derrick or other structure designated for use in
boring for oil or natural gas shall be erected, maintained or permitted upon any
Lot or within the Common Area.
Section Twelve. Storage.
No household furnishings, equipment, lawn furniture or related personal
property, including children's play objects, grills, bicycles, and lawn
ornaments of the Owner shall remain outside the residential unit or garage
overnight, meaning it must be removed from the front yards, front porches and
placed out of view of the public. Reasonable arrangements of seasonable flower
pots and hanging baskets are permitted.
Section Thirteen. Fines and Penalties.
The Association, by the Board of Directors, may impose fines and penalties for
any violation of this Declaration or this Article, pursuant to South Carolina
law. The Owners and Members consent to the Board making such determination and
the assessment of $50.00 per day fine for violations of the Declaration, Bylaws,
Articles of Incorporation and Rules and Regulations and consent to the
Association recording a lien against the Owner's or Member's Lot to collect such
fines. The following procedure shall govern the imposition of fines: (i) the
Association shall give written Notice of Violation of the Declaration, Bylaws,
Articles of Incorporation, and Rules and Regulations adopted by the Board of
Directors; (ii) if the Owner or Member does not respond within ten (10) days of
receipt of the Notice of Violation, the Owner or Member shall be deemed to have
agreed with such determination; (iii) if the Owner or Member objects to such
Notice of Violation, it shall provide all written evidence as to why such act or
omission does not constitute a violation of the Declaration, Bylaws, Articles of
Incorporation, and Rules and Regulations within ten (10) days of receipt of the
Notice of Violation; (iv) the Board shall consider all written evidence
submitted by the Owner or Member and shall make a final determination thereon
within fifteen (15) days of receipt of the Owner's or Member's written material;
(v) the Association, through the Board of Directors, shall respond to an Owner's
or Member's objection in writing with a final determination on the issue; (vi)
if the Owner or Member does not adhere to the Association's initial
determination or final determination, if applicable, the Association shall be
entitled to levy a fine and immediately record a lien therefore against the
Owner or Member, not exceeding $50.00 per day for as long as the violation of
Declaration, Bylaws, Articles of Incorporation or Rules and Regulations
continue. Upon the thirtieth (30th) day after recording a lien, the
Association shall be entitled to initiate foreclosure proceedings against the
Owner if the fines have not been fully paid.
Section Fourteen. Rules and Regulations Concerning the Use
of the Lot.
Rules and Regulation concerning the use of the Lots may be promulgated by the
Association acting by and through its Board of Directors, each of which shall be
deemed to be incorporated herein by reference and made a part thereof, as
amended from time to time. The Association shall deliver such rules and
regulations to Owners prior to the time that they become effective. The rules
and regulations promulgated from time to time shall be deemed to be reasonable
and enforceable, so long as they bear any relationship to the safety, health,
happiness and enjoyment of the Owners, and in furtherance of a plan to provide
for the congenial occupation of the Lots, to promote and protect the cooperative
aspects of ownership, the value of the Lots and/or facilitate the administration
of the community as a first class, safe, healthy, happy, quiet and restful
residential community. The Board of Directors of the Association is hereby
granted specific power and authority to enforce said rules and
All of the Properties, including Lots and Common Areas, shall be subject to
such easements for driveways, walkways, parking areas, water lines, sanitary
sewers, storm drainage facilities, gas lines, telephone and electric power line,
and other public utilities as shall be established by the Declarant or by its
predecessors in title; further, the Association shall have the power and
authority to grant and establish upon, over, under, and across the Common Areas
conveyed to it, such further easements as are requisite for the convenient use
and enjoyment of the Properties. In addition, there is hereby reserved in the
Declarant and its agents and employees an easement and right of ingress, egress,
and regress across all Common Areas, now or hereafter owned by the Association,
for the purpose of construction of improvements within the Properties, including
the right of temporary storage of construction materials on said Common
So long as Declarant owns any property described on Exhibit "A", Declarant
reserves blanket easements and the right to grant such specific easements over
all the Properties, including Lots and Common Areas, as may be necessary in
conjunction with the orderly development of the property described on Exhibit
"A" or any adjacent property (including without limitation the planning,
construction, marketing, leasing, management and maintenance of improvements)
for use, enjoyment, access, construction and maintenance of public or private
utilities and storm drainage (whether subsurface or surface). No such easements
may be located withn the area beneath any building located thereon.
Declarant reserves access easements over all Lots for construction, either
for that Lot or any adjacent property and easements for the installation of
public or private utilities and storm drainage (whether subsurface or surface).
The right is reserved by Declarant, or its agents, to place and maintain on
the Properties all model homes, sales offices, advertising signs and banners and
lighting in connection therewith and other promotional facilities at such
locations and in such forms as shall be determined by Declarant. There is also
reserved unto Declarant, its agents and propsective purchasers and tenants, the
right of ingress, egress and transient parking in and through the Properties for
such sales purposes. Declarant also reserves the right to maintain on the
Properties without charge (a) a general construction office for Declarant's
contractors and (b) appropriate parking facilities for the employees of
Declarant's agents and contractors. Notwithstanding any other provision to the
contrary, no annual or special assessment shall be due for any models of the
Declarant. Notwithstanding any provision herein to the contrary, the rights and
easements created under this Declaration are subject to the right of Declarant
to execute all documents and do all other acts and things affecting the
Properties, which in the Declarant's opinion, are required to implement any
right of Declarant set forth in this Declaration (including the making of any
dedications or conveyances to public use) provided any such document or act is
not inconsistent with the then existing property rights of any Owner.
Notwithstanding any provision to the contrary, Declarant reserves the right and
power, and each Owner by acceptance of a deed to a Lot is deemed to and does
give and grant to Declarant a power of attorney, which right and power is
coupled with an interest and runs with the title to a Lot and is irrevocable
(except by Declarant), without the consent, approval or signature of each Owner,
to (i) amend the Declaration and all attachments, to the extent necessary to
confirm[sic] to the requirements then governing the
purchases or insurance of mortgages by The Mortgage Corporation, Federal
National Mortgages Association, Governmental National Mortgages Association,
Federal Home Loan Mortgage Corporation, Mortgage Guaranty Insurance Corporation,
Department of Housing and Urban Development, the Federal Housing Administration,
the Veterans Administration, or any other similar agency or organization, (ii)
induce any such agencies or entities to make, purchase, sell, insure or
guarantee first mortgages covering Lot ownership, (iii) to correct typographical
errors, surveyor errors in descriptions or otherwise, or obvious factual errors
or omissions, the correction of which would not impair the interest of any Owner
or mortgagee, (iv) bring this Declaration into compliance with South Carolina
law, (v) to amend any Exhibits, (vi) to exercise any Special Declarant Rights or
development rights; or (vii) to amend this Declaration in any manner which does
not materially affect an Owner's use and enjoyment of his or her Lot; and
further provided that if there is an Owner other than the Declarant, the
Declaration shall not be amended to increase the scope or the period of control
of the Declarant. Each deed, mortgage, other evidence of obligation, or other
instrument affecting a Lot and the acceptance thereof shall be deemed to be a
grant and acknowledgment of, and consent to the reservation of, the power of
Declarant to vote in favor of, make, execute and record any of the foregoing
amendments. The rights of Declarant under this Section shall terminate at such
time as Declarant no longer holds or controls title to a Lot and the right of
Declarant to add the Additional Property has expired.
DISPUTE RESOLUTION AND LIMITATION OF LIABILITY
Section one. Agreement to Avoid Costs of Litigation and to
Limit Rights to Litigate Disputes.
The Association, Declarant, all persons subject to this Declaration, Owners and
any Person not otherwise subject to the Declaration who agrees to submit to this
Article (collectively "Bound Parties") agree to encourage the amicable
resolution of disputes involving the Properties in order to avoid the emotional
and financial costs of litigation. Accordingly, each Bound Party covenants and
agrees that all claims, grievances or disputes between such Bound Party and any
other Bound Party involving the Properties including, without limitation,
claims, grievances or disputes arising out of or relating to interpretation,
application, or enforcement of this Declaration, the By-laws, the Association
rules, or the Articles (collectively "Claim"), except for those Claims
authorized in Section Two, shall be resolved using the procedures set forth in
Section Three in leiu of filing suit in any court or initiating proceedings
before any administrative tribunal seeking redress or resolution of such
Section Two. Exempt Claims.
The following Claims ("Exempt Claims") shall be exempt from provisions of
- Any suit by the Association against any Bound Party to enforce the
provisions of Article V (Assessments);
- Any suit by the Association to obtain a temporary restraining order (or
equivalent emergency equitable relief and such other ancillary relief as
the court may deem necessary in order to maintain the status quo and
preserve the Association's ability to enforce the provisions of Article VII
(Architectural Control) and Article IX (Use Restrictions); and
- Any suit between Owners (other than Declarant) seeking redress on the basis
of a Claim which would constitute a cause of action under federal law or the
laws of the State of South Carolina in the absence of a claim based on the
Declaration, By-Laws, Articles or rules of the Association, if the amount in
controversy exceeds $5,000.00.
Any Bound Party having an Exempt Claim may submit it to the alternative
dispute resolution procedures set forth in Section Three, but there shall be no
obligation to do so. The submission of an Exempt Claim involving the
Association to the alternative dispute resolution procedures of Section Three
require the approval of the Association.
Section Three. Mandatory Procedures for All Other Claims
All Claims other than Exempt Claims shall be resolved using the following
- Notice. Any Bound Party having a Claim ("Claimant") against any
other bound Party ("respondent"), other than an Exempt Claim, shall notify
each respondent in writing of the Claim (the "Notice"), stating plainly and
- The nature of the Claim, including date, time, location, persons involved
and respondent's role in Claim;
- The basis of the Claim ("Claimant")[sic] (i.e., the
provisions of this Declaration, the By-Laws, the Articles or rules or other
authority out of which the claim arises);
- What Claimant wants Respondent to do or not to do to resolve the Claim;
- The Claimant wishes resolve the Claim by mutual agreement with Respondent
and is willing to meet in person with Respondent at a mutually agreeable
time and place to discuss in good faith ways to resolve the Claim.
- Each Claimant and Respondent (the "Parties") shall make every reasonable
effort to meet in person and confer for the purpose of resolving the Claim
by good negotiation.
- Upon receipt of a written request from any Party, accompanied by a copy of
the Notice, the Board may appoint a representative to assist the Parties in
resolving the dispute by negotiation, if in its discretion it believes its
efforts will be beneficial to the Parties and to the welfare of the
- If the Parties do not resolve the Claim through negotiation within 30 days
of the date of the Notice (or within such other period as may be agreed
upon by the Parties) ("Termination of Negotiations"), Claimant shall have
30 additional days within which to submit the Claim to mediation under the
auspices of any dispute resolution center or other such independent agency
providing similar services in the same geographical area upon which the
Parties may mutually agree.
- If Claimant does not submit the Claim to mediation within 30 days after
Termination of Negotiations, Claimant shall be deemed to have waived the
Claim, and Respondent shall be released and discharged from any and all
liability to Claimant on account of such Claim; provided, nothing herein
shall release or discharge Respondent from any liability to Persons not a
Party to the foregoing proceedings.
- If the Parties do not settle the Claim within 30 days after submission of
the matter to the mediation process, or within such time as determined
reasonable or appropriate by the mediator, the mediator shall issue notice
of termination of the mediation proceedings ("Termination of Mediation").
The Termination of Mediation notice shall set forth when and where the
Parties met, that the Parties are at an impasse, and the date that mediation
- Each Party shall, within five days of the Termination of Mediation, make
written offer of settlement in an effort to resolve the Claim. The Claimant
shall make a final written settlement demand ("Settlement Demand") to the
Respondent. The Respondent shall make a formal written settlement offer
("Settlement Offer") to the Claimant. If the Claimant fails to make a
Settlement Demand, Claimants[sic] original Notice
shall constitute the Settlement Demand. If the Respondent fails to make a
Settlement Offer, Respondent shall be deemed to have made a "zero" or "take
nothing" Settlement Offer.
- Final and Binding Arbitration.
Notwithstanding any other provision herein to the contrary, any and all
claims, disputes and controversies by and between the Declarant,
Association, and/or Owners or any combination thereof arising from or
related to the Properties (including Lots and Common Areas), any
improvements to the Properties, the sale of any part of the Properties,
including, without limitation, any claim of breach of contract or warranty,
negligence, negligent or intentional misrepresentation or non disclosure in
the inducement, execution or performance of any contract, including this
arbitration agreement, and breach of any alleged duty of good faith and fair
dealings, shall be submitted to arbitration by and pursuant to the rules of
Construction Arbitration Services, Inc. ("CAS"), American Arbitration
Association ("AAA"), or Demars & Associates, Ltd. ("Demars"), in effect
at the time of the request for arbitration or by such other arbitration
service as Declarant shall, in its sole discretion select, and pursuant to
the rules of that arbitration service in effect at the time of the request
for arbitration. This arbitration agreement shall inure to the benefit of,
and be enforceable by all successors and assigns of the parties. Any party
shall be entitled to recover reasonable attorneys' fees and costs incurred
in enforcing this arbitration agreement, and the arbitrator shall have sole
authority to award such fees and costs. The decision of the arbitrator
shall be final and binding and may be entered as a
judgement[sic] in any state or federal court of
competent jurisdiction. This arbitration agreement shall be deemed to be a
self-executing arbitration agreement. Any disputes concerning
interpretation or the enforceability of this arbitration agreement,
including without limitation, its revocability or voidability for any cause,
the scope of arbitrable issues and any defense based on waiver, estopple or
laches shall be decided by the arbitrator. The initiation of or
participation by any party in any judicial proceeding concerning this
arbitration agreement or any matter arbitrable hereunder shall not be deemed
a waiver of the right to enforce this arbitration agreement, and
nothwithstanding provision of law to the contrary, shall not be asserted or
accepted as a reason to delay, to refuse to participate in, or to refuse to
enforce this arbitration agreement. Any party who shall commence a judicial
proceeding concerning a dispute that is arbitrable, however, shall also be
deemed a party requesting arbitration within the meaning of this arbitration
agreement. The arbitrator's compensation shall be borne equally by the
arbitrating parties. Any additional fees may be assessed in accordance with
the arbitration rules and fees. Parties expressly agree that this
arbitration agreement involves and concerns interstate commerce and is
governed by the provisions of the Federal Arbitration Act (9 USC §1 et
seq.) now in effect as the same may from time to time be amended,
supplanted or replaced, to the exclusion of any different or inconsistent
state or local law, ordinance, or judicial rule; and to the extent that any
local law, ordinance or judicial rule may be inconsistent with any provision
of the rules of the arbitration service under which the arbitration
proceeding shall be conducted, the latter rule shall govern the conduct of
the proceedings. If any provisions of this arbitration agreement shall be
determined by arbitrator or by any court to be (i) non-enforceable or (ii)
have been waived, the remaining provision shall be deemed to be severable
therefrom and enforceable according to their terms.
Section Four. Allocation of Costs of Resolving Claims
- Each Party shall bear its own costs incurred prior to and during the
proceedings described in Section Three (a), (b) and (c), including the fees
of its attorney or other representative. Each Party shall share equally
all charges rendered by the mediator(s) pursuant to Section Three (c).
- Each Party shall bear its own costs (including the fees of its attorney or
other representative) incurred after the Termination of Mediation under
Section Three (c) and shall share equally in the costs of conducting the
arbitration proceeding (collectively, ("Post Mediation Costs"), except as
otherwise provided in subsection Section Four (c).
- Any award, which is equal to or more favorable to Claimant than Claimant's
Settlement Demand shall add such Claimant's Post Mediation Costs to the
Award, such Costs to be borne equally by all Respondents. Any Award which
is equal to or less favorable to Claimant than Respondent's Settlement Offer
to that Claimant shall also award to such Respondent its Post Mediation
Costs, such Costs to be borne by all such Claimants.
Section Five. Enforcement of Resolution.
If the Parties agree to a resolution of any Claim through negotiation or
mediation in accordance with Section Three and any Party thereafter fails to
abide by the terms of such agreement, or if any Party fails to comply with the
terms of any Award following arbitration, then any other Party may file suit or
initiate administrative proceedings to enforce such agreement or Award without
the need to again comply with the procedures set forth Section Three, in such
event, the Party taking action to enforce the agreement or Award shall be
entitled to recover from the non-complying Party (or if more than one
non-complying Party, from all such Parties pro rata) all costs incurred in
enforcing such agreement or Award, including, without limitation, attorneys fees
and court costs.
Section Six. Commencement of Litigation.
(a) Any litigation by the Association (i) other than the "Exempt Claims" set
out in Section Two or (b) any arbitration against the Declarant shall both
require an affirmative vote of seventy five percent (75%) of the Members of the
Association prior to the institution of such litigation. No lawsuit shall be
permitted against Declarant, but any action against the Declarant shall be
pursuant to arbitration as set forth in this Declaration. The Association and
Owners agree to give the Declarant written notice of any claim or defect in the
Properties, and further grant the Declarant a sixty (60) day period within which
to investigate the claim or defect and respond to the Association and/or Owners,
prior to requesting arbitration.
Section One. Enforcement.
The Declarant, Association, or any Owner shall have the right to enforce, by
proceeding at law or in equity, all restrictions, conditions, covenants,
reservations, liens, and charges now or hereafter imposed by the provisions of
this Declaration. Failure by the Declarant, 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 Two. Severability.
Invalidation of any one of these covenants or restrictions by
judgement[sic] or court order shall in no way affect any
other provisions, which shall remain in full force and effect.
Section Three. Amendment.
The covenants and restrictions of this Declaration shall run with and bind the
land perpetually. Except as provided herein, this Declaration may be amended by
an instrument signed by not less than sixty-seven percent (67%) of the Lot
Owners. No amendment in any circumstance may alter, amend, or eliminate any
right, privilege, or benefit of Declarant, and further no amendment relating to
the maintenance, repair, replacement and ownership of the permanent ponds on the
Properties shall be permitted without the review and approval by the
governmental office having jurisdiction for watershed protection.
Section Four. Management and Contract Rights of the Association.
Declarant shall enter into a contract with a management company or manager for
the purposes of providing all elements of the operation, care, supervision,
maintenance, and management of the Properties. Declarant contemplates that the
initial manager may be the Declarant or a firm affiliated with the Declarant.
The initial Board of Directors of the Association shall ratify and approve the
management contract, which will provide for such manager or management company
to act as a managing agent for the Association with respect to the Properties at
a rate equal to the greater of: (i) Fourteen Dollars ($14.00) per month for each
Lot that has become subject to an assessment by the Association under Article V,
Section Eight of this Delcaration, or (ii) Four Hundred Dollars ($400.00) per
month. Any such contract or lease entered into by Declarant or by the
Association while Declarant is in control thereof shall contain a provision
allowing the Association to terminate such contract, without justification or
penalty, upon sixty (60) days notice.
Section Five. Rights of Noteholders.
Any institutional holder of a first mortgage on a Lot ("Mortgage Holder") will
upon request, be entitled to (a) inspect the books and records of the
Association during normal business hours, (b) receive an annual financial
statement of the Association within ninety (90) days following the end of its
fiscal year, (c) receive written notice of all meetings of the Association and
the right to designate a representation[sic] to attend
all such meetings, (d) receive written notice of any condemnation or casualty loss
that effects either a material portion of the project or the unit securing its
mortgage, (e) receive written notice of any sixty-day delinquency in the
payment of assessments or charges owed by the Owner of any unit on which
it holds the mortgage, (f) receive written notice of a lapse, cancellation, or
material modification of any insurance policy or fidelity bond maintained
by the Owners' Association, (g) receive written notice of any proposed action
that requires the consent of a specified percentage of mortgage holders, and
(h) be furnished with a copy of the master insurance policy.
Section Six. Notices.
Any notice required or desired to be given under the provisions of this
Declaration shall be deemed to have been properly delivered when deposited in
the United States mail, postage prepaid, directed to the last known Mortgage
Holder or other party entitled to notice, at the last known address for each
such party, all as shown on the books and records of the Association at the
time such notice is given.
Section Seven. Exculpation.
It is expressly understood and agreed that nothing contained in this Declaration
shall be interpreted or construed as creating any liability whatsoever, directly
or indirectly, against Declarant or any of its officers, members, managers,
employees, agents, attorneys, heirs, executors, legal representatives,
successors or assigns (collectively the Declarant Related Parties) for monetary
relief or damages. In particular, and without limiting the generality of the
foregoing, if any proceeding shall be brought to enforce the provisions of this
Declaration, the party instituting such proceeding shall not be entitled to take
any action to procure any money judgment against the Declarant or any related
Section Eight. Conflict with South Carolina Law: Severability.
Should any of the terms, conditions, provisions, paragraphs, or clauses of this
Declaration conflict with any provisions of South Carolina law, the provisions
of South Carolina law shall control unless South Carolina law permits the
Declaration to override South Carolina law, in which event the Declaration shall
control. The invalidity of any covenant, restriction, condition, limitation,
provision, paragraph or clause of this Declaration, or any part of the same, or
the application thereof to any person or circumstance, shall not impair or
affect in any manner the validity, enforceability or affect of the rest of this
Declaration, or the application of any such covenant, restriction, condition,
limitation, provision, paragraph, or clause to any other person or
Section Nine. Disclaimer of All Warranties.
Declarant and Developer hereby disclaim and exclude any and all warranties,
expressed or implied (including, without limitation, any implied warranty of
habitability, merchantability, quality or fitness for particular purpose), with
respect to the Properties, Common Area and the Lots. The Association and any
Lot Owner knowingly agree to waive any and all rights that they may have
pursurant to the implied warranty of habitability. The Asociation and Lot
Owners acknowledge and agree that the sole warranties that apply to the
Properties, Common Area and the Lots are solely contained within the purchase
agreement for the acquisition of the Lots.
Section Ten. Disclaimer of Other Entities.
Owners and the Association acknowledge and understand that their relationship is
with the Declarant pursuant to the written terms of this Declaration, and no
other entity notwithstanding anything to the contrary in advertising,
promotional or other materials. Owners and the Association acknowledge that
they have no claim against any entity including affiliates, subsidiaries,
parents or otherwise under common control of Declarant, and Owners and the
Association waive and release any such claims, if any.
IN WITNESS WHEREOF, the undersigned, being the Declarant herein, has caused
this instrument to be executed in its corporate name and its corporate seal to
be hereunto affixed, by authority of the Board of Directors, the day and year
first written above.
[Various signatures including that of the President and Secretary of PORTRAIT
HOMES-WESTRIDGE LLC, notarized, 23 day of January, 2007 in Cook County,
ALL AND SINGULAR, that certain piece, parcel, or tract of land situate,
lying and being in Horry County, South Carolina, designated as 64.623 acres +/-
as shown on that certain plat entitled "ALTA/ACSM Land Survey of a Portion of
Burning Ridge Golf Course for Portrait Homes of South Carolina, LLC" by
ETS-Engineering Services, Inc. dated February 8, 2005, revised July 1, 2005
recorded in Plat Book 206 at page 128 and 128-A, records of Horry County, South