Important!
The following is not an official copy of the 1st Amendment to the Covenants of Falls Creek Subdivision and is posted here for reference purposes only.
An official copy of the Amendment can be obtained from the Transylvania County Register of Deeds.
First Amendment to
Declaration of Restrictive Covenants of
Falls Creek Subdivision
THIS FIRST AMENDMENT to the Declaration of Restrictive Covenants of Falls Creek Subdivision (the “Amendment”) is made this 29th day of April 2023, by the Falls Creek Property Owners Association, Inc. (“Association”) and the Owner(s) of Lots to which at least sixty-seven percent (67%) of the votes in the Association are allocated.
RECITALS
WHEREAS, Falls Creek is a subdivision more particularly described in Exhibit A of the Declaration, as recorded in Book 244, page 410, Transylvania County Registry, and depicted on the various maps associated therewith;
WHEREAS, the Association is subject to that certain Declaration of Restrictive Covenants of Falls Creek Subdivision, dated October 14, 1980, and recorded in Book 244 at Page 410, Transylvania County Registry (“Declaration”);
WHEREAS, the Owners wish to modify the Declaration to adopt the North Carolina Planned Community Act, N.C. Gen. Stat. § 47F-1-101 et seq. (“PCA”), in its entirety, and otherwise to make changes to the Declaration as set forth below;
WHEREAS, pursuant to the North Carolina Planned Community Act, the Declaration may be amended by the vote or written agreement of the lot owners of units to which at least at sixty-seven percent (67%) of the votes of the Association are allocated;
WHEREAS, on April 29, 2023, in accordance with the Declaration, and upon the affirmative vote of not less than sixty-seven percent (67%) of the votes allocated in the Association voted in favor of the adoption of this Amendment; and
WHEREAS, by unanimous consent on April 29, 2023, the Board of Directors of the Association approved this Amendment and joins in its execution.
NOW, THEREFORE, the Declaration is amended as follows:
AMENDMENT
1. Section A is amended by deleting subsection 2 in its entirety and replacing it as follows:
“2. ARCHITECTURAL CONTROL: No building or fence shall be erected, placed or altered on any lot until the construction plans and specifications, and a plan showing the location of the structure on the lot have been approved by the Architectural Control Committee ‒ pursuant to the procedures described in Section C below ‒ as to the quality of workmanship and materials, harmony of external design with existing structures and the natural environment, and as to location with respect to topography and finish-grade elevation. Unless similarly approved, no major portion of any lot shall be cleared or graded, nor shall any trees over four (4) inches in diameter be cut down, unless removal of the same is necessary for the construction of a dwelling as permitted herein, or is necessary for the health, safety, and welfare of the owner of the lot or that of the adjoining owners. Natural drainage shall not be changed without the approval of said committee. Approval shall not be withheld from any proposed plans arbitrarily, capriciously and without good cause and justification. The foregoing provisions in this paragraph notwithstanding, no such approval is required for fences in existence as of the recording date of this Amendment to the Declaration.”
2. Section A is amended by adding a new last sentence to subsection 5 that reads as follows:
“The easement area of each lot may not be developed for purposes of parking, and routine parking of vehicles in the easement area of each lot is expressly prohibited.”
3. Section A is amended by adding a new subsection 19 that reads as follows:
“19. PROHIBITION OF SHORT-TERM RENTALS; HOMESTAYS ALLOWED: No dwelling or other building shall be rented in its entirety for a period of less than thirty (30) days. The foregoing prohibition notwithstanding, any Owner who, as of the effective date of the amendment enacting this Paragraph 19, was actively listing and/or leasing his or her dwelling or building for rental periods of less than thirty (30) days within the twelve months immediately preceding the enactment, may continue to do so without being in violation of this provision. The foregoing exception shall be personal to any such Owner and be inapplicable upon subsequent conveyance to that Owner’s heirs, successors and assigns. Homestays are permitted. A “homestay” is defined as the occupancy for sleeping purposes of one or more rooms in a dwelling that is concurrently occupied by the owner, and for which occupancy the owner receives remuneration, and the occupancy of said room(s) by the homestay tenant is subordinate and incidental to the primary residency of the owner. Tenancies of one year or more shall be evidenced by a written lease and a copy of said lease shall be provided to the Association. The Owner of any leased dwelling shall be personally liable for damage caused to the Common Elements by the tenant. The Owner shall also provide the Owner’s tenant with a copy of the Association’s governing documents.”
4. Section B is amended by striking it in its entirety and replacing it as follows:
“B. ROAD MAINTENANCE
1. MAINTENANCE OBLIGATION: The Association, at its expense, shall maintain, operate and keep in good repair, unless such obligations are assumed by any municipal or governmental agency having jurisdiction thereof, the Common Elements (as defined by the PCA) including, but not limited to the roads depicted on the above-referenced maps. The Association shall make the determination as to when maintenance, repair, replacement and care shall be done, and its determination shall be binding.
2. ASSESSMENTS: 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 for capital improvements, such assessments to be established and collected as hereinafter provided. Annual Assessments for each new fiscal year shall be due and payable by no later than August 1. The amount of such annual assessments may vary from time to time based on the Association’s budget; provided, however, that no annual assessment may increase over the prior annual assessment by more than the percentage increase in the year-over-year rise in the Consumer Price Index for “all items” for All Urban Consumers, as published by the United States Bureau of Labor Statistics. The Association shall provide written notice of the amount of the annual assessment within not fewer than thirty (30) days prior to the due date. The annual and special assessments, together with interest, late charges, costs, and reasonable attorney’s fees, shall be a charge on the land and shall be a continuing lien upon the property 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 property at the time when the assessment fell due. The personal obligation for delinquent assessments shall not pass to his successors in title unless expressly assumed by them. All Common Expenses (as defined by the PCA) shall be shared equally by the owners of each Lot on a pro rata basis.
3. PURPOSE OF ASSESSMENTS: The assessments levied by the Association shall generally be used to promote the recreation, health, safety, and welfare of the residents and guests in the Subdivision and, in particular, to maintain and improve the Common Elements, including the maintenance, repair and reconstruction of the Subdivisions’ roads. Assessments may also be used, without limitation, to set reserves for the replacement of capital improvements, procure insurance and employ attorneys to represent the Association when necessary, and for such other needs as may arise.
4. EFFECT OF NONPAYMENT OF ASSESSMENTS; REMEDIES OF THE ASSOCIATION: Any assessment not paid by August 1 shall accrue interest from the due date at the maximum rate allowed by law, together with a monthly late charge, as determined by the Board, in an amount not to exceed ten percent (10%) of the unpaid assessment(s). If an assessment remains unpaid after ninety (90) days, the Association shall place a lien on the subject lot in accordance with the provisions of § 47F-3-116 of the PCA. The Association may thereafter bring an action at law against the Owner personally obligated to pay the same or foreclose the lien against the property in the same manner as provided by the PCA. No Owner may waive or otherwise escape liability for the assessments provided for herein by nonuse of any portion of the Common Elements or by abandonment of his or her Lot. Upon payment of all outstanding assessments and charges, the Association shall remove the lien within a reasonable time following receipt of the payment.”
5. Section F is amended by striking subsection 1 in its entirety and replacing it as follows:
“1. TERM/AMENDMENT: These covenants are to run with the land and shall be binding on all parties and all persons claiming under them for a period of ten (10) years from the date these covenants are recorded, after which said time said covenants shall be automatically extended for successive periods of ten (10) years. These covenants may be terminated only by agreement of lot owners of lots to which at least eighty percent (80%) of the votes in the Association are allocated. These covenants may be amended only by affirmative vote of the owners of lots to which at least sixty-seven percent (67%) of the votes in the Association are allocated.”
6. Section F is amended by adding a new subsection 4 that reads as follows:
“4. NC PLANNED COMMUNITY ACT: The Subdivision shall be governed by the North Carolina Planned Community Act, N.C. Gen. Stat. § 47F-1-101 et seq, as amended from time to time, in its entirety.”
7. Section F is amended by adding a new subsection 5 that reads as follows:
“5. UNDUE HARDSHIP: Upon application by an aggrieved Owner, the Board, in its sole discretion, may waive or modify requirements imposed by any of the foregoing covenants or rules and regulations associated with said covenants, in the event the enforcement of said covenant, rule or regulation imposes an undue hardship upon the Owner. Any such waiver or modification shall not be deemed to establish a precedent.”
8. In the event of a conflict between the Declaration and this Amendment, this Amendment shall control.
9. All other terms and conditions of the Declaration, as amended from time to time, remain valid and enforceable.
IN WITNESS WHEREOF, the Association has caused this instrument to be signed in its corporate name by its duly authorized officer by authority of its Board of Directors.
FALLS CREEK PROPERTY OWNERS ASSOCIATION, INC.
By: _______Nancy King_________
NANCY KING, President
NORTH CAROLINA
__Transylvania___ COUNTY
I, ___James Siniard____, a Notary Public for said County and State, do hereby certify that Nancy King personally came before me this day and acknowledged that she is the President of Falls Creek Property Owners Association, Inc., a corporation, and that she, as President, being authorized to do so, executed the foregoing on behalf of the corporation. Witness my hand and official seal, this the _2_ day of ___May__ 2023.
______James Siniard______
Notary Public
(SEAL)
My Commission Expires:
___1-16-2028____
CERTIFICATION
I, the undersigned, do hereby certify:
That I am the duly-appointed secretary of Falls Creek Property Owners Association, Inc., a North Carolina non-profit corporation, and,
That the foregoing Amendment was duly adopted by written ballot upon affirmative vote of not less than sixty-seven percent (67%) of the votes entitled to be cast on the measure on the 29th day of April 2023.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the seal (if any) of said Association this __2__ day of ______May_______ 2023.
_________Alice Wellborn_______
ALICE WELLBORN, Secretary