KNOW ALL MEN BY THESE PRESENTS, that Falls Creek, Inc. (hereinafter referred to as Developer), is the owner and developer of that certain property situate, lying and being in Dunns Rock Township, Transylvania County, North Carolina, known as Falls Creek Subdivision (The Development), described and attached hereto, designated as Exhibit "A" and made a part hereof by reference.
Developer intends to sell and convey the lots and parcels situated within the Development and before doing so, desires to impose upon them mutual and beneficial restrictions, covenants, equitable servitudes and charges under a general plan or scheme of improvements for the benefit of all of the lots and parcels in the Development and the owners and future owners thereof.
NOW, THEREFORE, Developer declares that all of the lots and parcels in the Development are held and shall be held, conveyed, and hypothecated or encumbered, leased, rented, used, occupied and improved, subject to the provisions of this Declaration, all of which are declared and agreed to be held in furtherance of a plan for the Development, improvement and sale of said lots and parcels and are established and agreed upon for the purpose of enhancing and protecting the value, desirability, and attractiveness thereof. The provisions of this Declaration are intended to create mutual equitable servitudes upon each of said lots and parcels in favor of each and all other lots and parcels; to create reciprocal rights between the respective owners of all such lots and parcels; to create privity of contract and estate between the grantees of such lots, their heirs, successors and assigns; and shall, as to the owner of each such lot or parcel, his heirs, successors or assigns, operate as covenants running with the land for the benefit of each and all other such lots and parcels in the Development and their respective owners, present and future.
A. RESIDENTIAL AREA COVENANTS
1. LAND, USE AND BUILDING TYPE: No lot shall be used except for residential purposes. No building shall be erected, altered, placed or permitted to remain on any lot other than one detached, single-family dwelling, not to exceed two and one-half stories in height, and a private garage for not more than two cars. Each lot is to be sold as a single-home site, and is not to be further divided. All utilities on lots, including electrical and telephone lines shall be located as per the attached plat of said subdivision. No road shall be constructed through any lot to connect with lands lying outside of Falls Creek Subdivision.
2. ARCHITECTURAL CONTROL: No building 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 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 removing the same is necessary for the construction of a home or dwelling permitted herein or is necessary for the health, safety, and welfare of the owner of the lot or for adjoining owners; nor shall any fence or wall be erected, placed, or altered on any lot. Approval shall be provided as in Part C hereof; and under no conditions should approval as under Part C hereof be withheld from any proposed building arbitrarily, capriciously and without good cause and justification. Natural drainage shall not be changed without the approval of said committee. Developers shall not be responsible for any drainage problems affecting any lot.
3. DWELLING COST, QUALITY AND SIZE: No dwelling shall be permitted on any lot of said subdivision at a cost of less than $35,000 based upon the cost levels prevailing on the date these covenants are recorded; it being the intention and purpose of these covenants to assure that all dwellings shall be of a quality of workmanship and materials substantially the same or better than that which can be produced on the date these covenants are recorded. The ground floor of the main structure of any dwelling erected or placed on any lot, exclusive of one-story open porches and garages, shall not be less than 1,000 square feet for one-story dwelling nor less than 1,800 square feet for a structure of more than one story.
4. BUILDING LOCATION: No building shall be located on any lot nearer to the front line or nearer to the side-street line than the minimum building set-back line shown on the recorded plat. In any event, no building shall be located on any lot nearer than 55 feet to the centerline on all streets. Further, no building shall be located nearer than 10 feet to an interior side-lot line. No dwelling shall be located on any interior lot line nearer than 25 feet to the rear-lot line. No building shall be located nearer than 25 feet to any side-street line. For the purpose of these covenants, eaves, steps, and open porches shall not be considered as a part of a building, provided, however, that this shall not be construed to permit any portion of the building on a lot to encroach upon another lot.
5. EASEMENTS: Easements for installation and maintenance of utilities and drainage facilities are reserved as shown on the recorded plat. Within these easements, no structure, planting or other material, shall be placed or permitted to remain which may damage or interfere with the installation and maintenance of utilities, or which may change the direction of flow of drainage channels in the easements, or which may obstruct or retard flow of water through drainage channels in the easements. The easement area of each lot and all improvements in it shall be maintained continuously by the owner of the lot, except for those improvements for which a public authority or utility company is responsible.
6. NUISANCES: No noxious or offensive activity shall be carried on upon any lot, nor shall anything be done thereon which may be or become any annoyance or nuisance to the neighborhood.
7. TEMPORARY STRUCTURES: No structure of a temporary character, trailer, basement, tent, shack, garage, or other out-buildings shall be used on any lot at any time as a residence, either temporarily or permanently.
8. SIGNS: No sign of any kind shall be displayed to the public view on any lot except one professional sign of not more than five square feet advertising the property for sale or lease.
9. LIVESTOCK AND POULTRY: No animals, livestock, or poultry of any kind shall be raised, bred, or kept on any lot, except that dogs, cats or household pets may be kept, provided they are not kept, bred, or maintained for any commercial purposes.
10. GARBAGE AND REFUSE DISPOSAL: No lot shall be used or maintained for a garbage dumping ground for rubbish. Trash, garbage or other waste shall not be kept except in sanitary containers. All incinerators or other equipment for the storage or disposal of such material shall be kept in a clean and sanitary condition.
11. COMPLETION OF STRUCTURE: Construction of any building shall be completed within twelve (12) months of the date that construction was begun.
12. MOTOR VEHICLES AND REPAIRS: No junk cars, trucks, buses, (whether operative or inoperative) and inoperative motor vehicles of any type shall be kept on any lot nor shall any repairs be made on any motor vehicles on any lot wit h the exception of minor emergency work such as the replacement of flat tires, dead batteries and other minor repairs.
13. SITE DISTANCE AND INTERSECTION: No fence, wall, hedge, or shrub planting shall be constructed, placed or permitted to remain in any place where the same shall obstruct the view above roadways of streets, roads or driveways or otherwise interfere with vehicular traffic in the roads of said subdivision.
14. WATER SYSTEM: Developer shall not be responsible for supplying water for any lot as it is each individual lot owner's responsibility to secure water for his lot.
15. DRILLING AND MINING: No drilling, refining, quarrying or mining operations of any kind shall be permitted on any lot.
16. DRIVE-WAY CONNECTIONS: All drive-way connections for each lot must include a fifteen (15) inch or larger diameter culvert and sufficient gravel.
17. STREAMS: No lot owner shall pollute any stream in the development nor shall any lot owner cause or allow any stream in the Development which may flow across his lot to be diverted from its natural direction and course of flow. The provisions of this article shall not be construed as prohibiting the construction of a dam on a lot by a lot owner so long as the construction plans and specifications thereof and a plan showing its location on the lot have been submitted to and approved by the Architectural Control Committee in the manner herein above specified Section A Part 2 hereof, and so long as the stream which flows across the lot owner's lot flows in its natural direction and course of flow at all points on the lot downstream from the dam constructed on the lot and upstream from the pond created by said dam.
18. CONCEALMENT OF FUEL-STORAGE TANKS: Fuel-storage tanks on any lot shall be buried below the surface of the ground or screened to the satisfaction of the Developer.
B. ROAD MAINTENANCE
Access to Lot Numbers 1 through 42 shall be over the roads shown on the plat herein above referred to. Until said roads are taken over for maintenance by the North Carolina Department of Transportation, or any successor or agency thereto; Developer, for itself and its successors or assigns, reserves the right to levy an annual road maintenance fee, against the owner of each lot, of of the yearly maintenance cost of said roads, not to exceed a maximum of $120.00 per lot per year; however, the permissible maximum fee chargeable lot in each calendar year shall be adjusted upward each year by the same percentage that the dollar has decreased in purchasing power during the preceding calendar year as reflected in statistics set out in the Consumer Price Index for all urban consumers published by the Bureau of Labor Statistics or any successor government bureau which may subsequently become responsible for compiling and publishing such statistics. In the event that the owner of one of said lots does not pay said maintenance fee within 90 days after the fee is levied each year said levy shall constitute a lien against said lot from the date of the filing of a Certificate of Levy in the office of Register of Deeds of Transylvania County. If any lot owner or group of owners should voluntarily accept the dual responsibility of overseeing the maintenance of said roads and levying the annual road maintenance fees, Developer reserves the right to turn over such duties to them for a period of time acceptable to all the parties concerned. Developer reserves the right to turn over to the lot owners as a group the responsibilities of overseeing the maintenance of said roads and of the levying the road maintenance fees at any time after 50% said lots are sold.
C. ARCHITECTURAL CONTROL COMMITTEE
1. MEMBERSHIP: The Architectural Control Committee shall be composed of two (2) to five (5) members duly appointed by the Developer, Developer's assigns, or successors in interest, who shall serve for a period of one year. A majority of the committee may designate a representative to act for it. In the event the death or resignation of any member of the committee, the remaining members of the committee shall have full authority to designate his successor. Neither the members of the committee nor its designated representative shall be entitled to any compensation for services performed pursuant to this covenant. Developer reserves the right to turn over to the lot owners as a group, the responsibility of appointing, on a one-vote-per-lot basis the members of the Architectural Control Committee at any time after 50% of the lots of Falls Creek Subdivision are sold, and at any time after said responsibility shall have been turned over to said lot owners, as a group, the then record owners of the majority of the lots shall have the power to change the membership of the committee through a duly recorded written instrument, or, likewise, through a duly recorded written instrument, to withdraw from the committee all or any portion of its powers and duties, or to restore to it any of its powers and duties.
2. PROCEDURE: The committee's approval or disapproval as required by the covenants shall be in writing. In the event the committee, or its designated representative, fails to approve or disapprove within thirty (30) days after plans and specifications have been submitted to it, or in any event, if no suit to enjoin the construction has been commenced prior to the completion thereof, approval will not be required and related covenants shall be deemed to have been fully complied with.
D. FALLS CREEK PROPERTY OWNER'S ASSOCIATION
At such time as developer shall have sold and conveyed 50% lots in Falls Creek Subdivision, all owners of lots situated in tie development shall be obligated to join the Falls Creek Property Owner's Association, to participate in the activities of said association on a one-vote-per-lot basis and to assist in the organization and operation thereof by paying their pro-rata share of the cost of organizing and operating said association.
E. AESTHETIC PROVISIONS AND COVENANTS
LOT AND HOME MAINTENANCE: All lots and homes constructed on said lots in this subdivision shall be maintained in a state of good repair and good condition. No lot or home located on the same shall be allowed to so deteriorate as to present a nuisance to the other lot owners or to present a danger to the health, safety, and welfare of the other lot owners in this subdivision.
F. GENERAL PROVISIONS
1. TERM: 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 unless an instrument signed by a majority of the then owners of the lots have been recorded, agreeing to change said covenants in whole or in part.
2. ENFORCEMENT: Enforcement shall be by precedings at law or in equity against any person or persons violating or attempting to violate any covenant either to restrain violation or to recover damages.
3. SEVERABILITY: Invalidation of any one of these covenants by judgment or court order shall in no wise affect any of the other provisions, which shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals this 14th day of October, 1980.
IN WITNESS WHEREOF, the said grantor has caused these presents to be signed in its name by its President and its corporate seal to be hereto affixed and attested by its Secretary, all by order of its Board of Directors duly given, this the day and year first above written.
FALLS CREEK, INC.
By: Donald S. Gardner, President
Carol C. Gardner, Secretary
STATE OF NORTH CAROLINA
COUNTY OF TRANSYLVANIA
I, Rhonda A. Dills, a Notary Public of said State and County, do hereby certify that day and acknowledged that Donald S. Gardner personally came before me this day and acknowledged that he is the President and that Carol C. Gardner is the Secretary of Falls Creek, Inc., a corporation described in and which executed the foregoing instrument, that she knows the common seal of said corporation, that the seal affixed to the foregoing instrument is said common seal, and the mane of the corporation was subscribed thereto by its President and that the said President and Secretary subscribed their names thereto and the said common seal was affixed, all by the order of the Board of Directors of said corporation, and that the said instrument is the act and deed of said corporation.
WITNESS my hand and notarial seal, this the 20 day of October.
Rhonda A. Dills
Notary Public
My Commission expires:
6/14/81
STATE OF NORTH CAROLINA
COUNTY OF TRANSYLVANIA
The foregoing certificate of Rhonda A. Dills, a Notary Public is certified to be correct. This instrument was presented for registration and recorded in this office in Deed Book 244, Page 410.
This the 20 day of October, 1980, at 1:30 o'clock p. m.
Fred H. Israel
Register of Deeds
