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HomeMy WebLinkAboutBylaws-Jasmine South Homeowners' Association, Inc.-v01 -1- BY-LAWS OF JASMINE SOUTH HOMEOWNERS’ ASSOCIATION, INC. ARTICLE I. BUSINESS ADDRESS The business address of JASMINE SOUTH HOMEOWNERS’ ASSOCIATION, INC. (the “Association”) shall be 6620 Gordon Rd., Suite G, Wilmington, NC 28411. The business address may be changed by the Board of Directors of the Association if required by the U.S. Postal Service, or, upon approval of the membership, for any other reason. ARTICLE II. MEMBERSHIP IN THE ASSOCIATION Every person or entity who is a record owner of a fee or undivided fee interest in any lot (“Lot”) in any phase or section of JASMINE SOUTH, a Planned Community as defined in Chapter 47F of the North Carolina General Statutes, the “North Carolina Planned Community Act” (the “Planned Community"), located in Wilmington, New Hanover County, North Carolina, shall be a member of the Association (“Member”). Ownership of such interest in a Lot shall be the sole qualification for membership, and membership shall be appurtenant to and may not be separated from such ownership. “Member” and “Owner” shall have the same meaning and may be used interchangeably. ARTICLE III. PURPOSES OF THE ASSOCIATION The purposes and duties of the Association shall be: A. To manage the Planned Community pursuant to the terms and provisions of Chapter 47F of the North Carolina General Statutes, these Bylaws, any Rules and Regulations promulgated by the Association or its Board of Directors and that certain Declaration of Covenants, Conditions and Restrictions for Jasmine South of record at Book , Page , New Hanover County Registry, as the same may be amended from time to time (“the Declaration”); B. To enforce the provisions of these Bylaws, the Declaration, and any Rules and Regulations promulgated by the Association or its Board of Directors; C. To promote and protect the enjoyment and beneficial use and ownership of all of the lots (“the Lots”). D. To maintain, protect, and repair the Common Elements of JASMINE SOUTH (a Planned Community) located in Wilmington, New Hanover County, North Carolina. -2- E. To maintain and repair and if necessary replace the Townhome Maintenance Elements of JASMINE SOUTH (a Planned Community) located in Wilmington, New Hanover County, North Carolina, including but not limited to lawn mowing and full exterior maintenance of the Townhomes. F. To maintain general liability insurance on the Common Areas, and if available at commercially reasonable rates, maintain broad form fire and extended and special perils insurance insurance on the portions of the Dwellings constructed on the Lots which are included in the Townhome Maintenance Elements, in similar manner to the insurance maintained by a condominium unit owners’ association on buildings of a condominium, notwithstanding that JASMINE SOUTH is not a condominium. No part of the net earnings of the Association shall inure to the benefit of its Members, the members of its Board of Directors or its officers, or to any other person, except that the Association shall be authorized and empowered to pay reasonable compensation for services rendered and to make payments and distributions in furtherance of the above stated purposes. ARTICLE IV. ASSESSMENTS The Association shall make and collect assessments against the Lots as stated in the Declaration and as provided in Chapter 47F of the North Carolina General Statutes. ARTICLE V. MEETINGS OF MEMBERS Section 1. Place of Meetings. All meetings of Members shall be held at such place in New Hanover County, North Carolina, as shall be designated on the notice of the meeting or agreed upon by a majority of the Members entitled to vote thereat. Section 2. Annual Meetings. The annual meeting of the Members shall be held during the last seven (7) days of November of each year on any day during that period (except a legal holiday) as determined by the Board of Directors, for the following purposes: A. to ratify or reject the summary of the proposed budget submitted by the Board of Directors pursuant to Article VI below; B. to elect the Board of Directors of the Association (subject to the provisions of Section 8 of the Declaration) for the coming fiscal year; and C. to transact any other business that may come before the membership, including but not limited to the adoption, modification and/or repeal of any Rules and Regulations governing the Planned Community Section 3. Substitute Annual Meeting. If the annual meeting shall not be held on the -3- day designated by these Bylaws, a substitute annual meeting may be called in accordance with the provisions of Section 4 of this Article V. A meeting so called shall be designated and treated for all purposes as the annual meeting. Section 4. Special Meetings. Special meetings of the Members may be called at any time by the President or the Board of Directors of the Association, or upon the written request of not less than twenty percent (20%) of the Members. Section 5. Notice of Meetings. Written notice of the meeting shall be delivered not less than ten nor more than fifty days before the date of any Members' meeting, either personally or by mail, by or at the direction of the President, the Secretary, or other person calling the meeting, to each Member of record. The notice shall state the time and place of the meeting and shall also state the items on the agenda, including the general nature of any proposed amendment to the Declaration or these Bylaws, any budget changes and any proposal to remove an Officer/Director. If mailed, such shall be deemed to be delivered when deposited in the United States Mail, addressed to the Member at his/her address as it appears on the record of Members of the Association, with postage thereon prepaid. It shall be the responsibility of the individual Members to keep the Secretary informed of their current addresses. In the absence of instructions from an individual Member as to his/her address, the Secretary shall be entitled to rely on the most recent records of the New Hanover County Tax Collector to determine the addresses of the owner(s) of a Lot. The notice of meeting must state the time and place of the meeting and all items on the agenda for the meeting. When a meeting is adjourned for thirty days or more, notice of the adjourned meeting shall be given as in the case of an original meeting. When a meeting is adjourned for less than thirty days in any one adjournment, it is not necessary to give any notice of the adjourned meeting other than by announcement at the meeting at which the adjournment is taken. Section 6. Voting Rights. The Corporation shall have two classes of voting memberships: 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. When an entity not a natural person is an Owner, it shall designate a representative authorized to vote on behalf of that Owner. The vote for such Lot shall be exercised as they, among themselves, determine but in no event shall more than one (1) vote be cast with respect to any Lot owned by Class A Member(s). Fractional voting with respect to any Lot is hereby prohibited. Class B. The Class B Member(s) shall be the Declarant (as defined in the Declaration) and shall be entitled to three (3) votes for each Lot owned. The Class B membership shall cease and be converted to Class A membership on the happening of any of the following events, whichever occurs earlier: (a) when 39/40 of the total number of Lots permitted by the approved site plan for the property described in Exhibit “A-1” and Exhibit “A-2” to the Declaration have certificates of -4- occupancy issued thereon and have been conveyed to Class “A” Members other than Builders; or (b) On December 31, 2032; or (c) when, in its discretion, the Class “B” Member so determines and declares in an instrument Recorded in the Register of Deeds of New Hanover County, North Carolina that it voluntarily surrenders Class B Membership. On matters of the Association's business submitted to vote of the membership, there shall be one (1) vote per Lot owned by Class A Members, regardless of the number of owners. There shall be no requirement of a quorum for submitting any matter to a vote at any Annual Meeting or Substitute Annual Meeting properly called and convened pursuant to these Bylaws. At any special meeting of Members, twenty percent (20%) of the Lots (represented either in person or by proxy) shall constitute a quorum for the purposes of submitting any matter to a vote. Except as otherwise provided by the Declaration, Chapter 47F of the North Carolina General Statutes, or these Bylaws, all matters submitted to a vote at any meeting held in accordance with these Bylaws shall be decided by a simple majority of the total votes cast. Section 7. Voting by Proxy. Votes may be cast either in person or by one or more agents authorized by a dated, written proxy executed by the Member or his/her attorney-in-fact. A proxy terminates one year after its date, unless it specifies a shorter term. Any form of proxy which is sufficient in law may be used, but the following form of proxy shall be deemed sufficient: The undersigned hereby irrevocably constitute and appoint their attorney-in-fact and proxy for the sole purpose of casting the vote allocated to Lot , on all matters submitted to vote at that meeting of JASMINE SOUTH HOMEOWNERS’ ASSOCIATION, INC., to be held on , 20 . The undersigned hereby ratify and confirm all such votes cast on behalf of said Lot at that meeting, and certify that they are fully authorized to execute this instrument of proxy on behalf of all owners of any fee interest in said Lot. This the day of , 20 . _____________________________________ Section 8. Voting List. At least ten days before each meeting of the Members, the Secretary of the Association shall prepare an alphabetical list of the Members entitled to vote at such meeting or any adjournment thereof, with the address of each, which list shall be kept on file with the book of records of the Association. This list shall be produced and kept open at the time and place of the meeting and shall be subject to inspection by any Members during the whole time of the meeting. Section 9. Waiver of Notice. Any Member may waive notice of any meeting. The attendance by a Member at a meeting shall constitute a waiver of notice of such meeting, except where a Member attends a meeting for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. -5- ARTICLE VI. BOARD OF DIRECTORS Section 1. Purpose, Number and Term of Office. The business and affairs of the Association shall be managed by a Board of Directors of no less than three (3) and no more than five (5) individuals, who shall be entitled to act on behalf of the Association. The Board of Directors shall initially consist of the initial members of the Board of Directors as named in the Articles of Incorporation of the Association. The Declarant may appoint and remove the members of the Board of Directors of the Association for so long as Declarant or an Affiliated Company of Declarant owns any property subject to this Declaration or which may become subject to this Declaration, notwithstanding the termination of Class “B” Membership. At the first meeting of the membership of the Association following the termination of the right of the Declarant to appoint and remove the members of the Board of Directors of the Association, the members of the Board of Directors shall be elected by the membership of the Association and those persons who receive the highest number of votes at a meeting at which a quorum is present shall be elected. Each member of the Board of Directors shall hold office until his/her death, disability, resignation or removal, or until the expiration of his/her term and the election of his/her successor. All Directors elected by the membership of the Association must be Owners. The Association shall publish the names and addresses of all Directors of the Association within 30 days of their election. Section 2. Powers and Duties. The Board of Directors shall have the power and the duty to act on behalf of the Association in all instances, except that the Board may not amend the Declaration, terminate the Association, elect members of the Board (except to fill any vacancy in its membership for the unexpired portion of a term) or determine the qualifications, powers, duties or terms of office of members of the Board, all of which powers are reserved to the Members. In addition, the Board of Directors shall have the following specific powers, duties and responsibilities: A. The Board will keep a complete record of all of its acts and all affairs of the Association and make the same reasonably available for examination by any Member, its agents or mortgagees, and make these records available at no charge within 90 days after the close of the fiscal year. B. The Board will adopt a proposed budget for the Association to be approved or rejected by the membership of the Association at its Annual Meeting. The proposed budget shall be adopted at a meeting of the Board to be held not more than sixty (60) days before the Annual Meeting of the membership of the Association. A summary of the proposed budget, including the amount of any proposed assessments against the Lots, shall be mailed to the membership not more than fourteen (14) nor less than thirty (30) days after the adoption of the proposed budget. The proposed budget shall be deemed ratified unless at the meeting more than fifty percent (50%) of the Lots existing at that time vote to reject it. In the event the proposed budget is rejected, the periodic budget last ratified shall be continued until such time as the membership ratifies a budget subsequently proposed by the Board of Directors. -6- C. The Board may fine any Owner as amount not to exceed One Hundred Dollars ($100.00) for any single violation of the Declaration, these Bylaws or any Rules and Regulations promulgated by the Board. In such event, the Board shall provide the Owner fined an opportunity to be heard before an Adjudicatory Panel to be appointed by the Board pursuant to Article X below. Multiple fines may be assessed against any Owner for multiple violations. Any such fines together with interest, attorney’s fees and court costs shall be deemed assessments against the Lot of such owner and shall be collectable by lien and judicial foreclosure as provided in the Declaration. The provisions of this subsection “C.” shall only be amended in manner consistent with North Carolina General Statutes § 47F-3-107.1, as amended, or successor statute. D. The Board may contract a management agent to perform and execute such duties, functions and responsibilities of the Board as the Board may deem appropriate; however, no such contract shall relieve the Board from its fiduciary duty to the Association. E. No financial payment, including payment made in the form of goods and services may be made to any member of the Association’s Board of Directors or to a business, business associate, or relative of a member of the Board of Directors, except as expressly provided for in the By-Laws or in payment for services or expenses paid on behalf of the Association which are approved in advance by the Board. Section 3. Removal of Directors. Any director may be removed at any time with or without cause by a vote of at least sixty-seven percent (67%) of all persons present and entitled to vote at any meeting of the membership of the Association at which a quorum is present. However, directors who are appointed by the Declarant may only be removed by the Declarant. Section 4. Vacancies. In the event of the death, disability, resignation or removal of a director, his/her successor shall be selected and appointed by the remaining members of the Board of Directors to serve until the next meeting of the membership of the Association or until a successor is appointed by the Declarant if such vacancy is the result of the death, disability, resignation or removal of an initial director or a director who was appointed by the Declarant. ARTICLE VII. MEETINGS OF THE BOARD OF DIRECTORS Section 1. Called Meetings. Meetings of the Board of Directors may be called by or at the request of the President or any two directors. Section 2. Notice of Meeting. The person or persons calling a meeting of the Board of Directors shall, at least ten (10) days before the meeting, give notice thereof by any usual means of communication. Such notice need not specify the purpose for which the meeting is called. Section 3. Waiver of Notice. Any member of the Board of Directors may waive notice of any meeting. The attendance by a member of the Board of Directors at a meeting shall constitute a waiver of notice of such meeting, except where a member of the Board of Directors attends a meeting for the express purpose of objecting to the transaction of any business because -7- the meeting is not lawfully called or convened. Section 4. Quorum. A majority of the number of the members of the Board of Directors fixed by these Bylaws shall constitute a quorum for the transaction of business at any meeting of the members of the Board of Directors. Section 5. Manner of Acting. Except as otherwise provided in these Bylaws, the act of the majority of the members of the Board of Directors present at a meeting at which a quorum is present shall be the act of the Board of Directors. Section 6. Informal Action by Members of the Board of Directors. Action taken by a majority of the members of the Board of Directors without a meeting is nevertheless Board action if written consent to the action in question is signed by all of the members of the Board of Directors and filed in the book of records of the Association, whether done before or after the action so taken. Section 7. Committees of the Board. The Board of Directors may establish either standing or ad hoc committees of the Members to assist it in its work. Such committees shall be chaired by a member of the Board of Directors. Section 8. Executive Board. The Board of Directors shall be the Executive Board of the Association as defined in North Carolina General Statutes § 47F-1-103 (13). ARTICLE VIII. OFFICERS Section 1. Designation. The officers of the Association shall consist of a President, a Vice President, a Secretary, and a Treasurer, and such other officers as the membership may from time to time elect. The offices of Secretary and Treasurer may be held by the same person; otherwise, no two offices may be held by the same person. Section 2. Election and Term. The initial officers of the Association shall be elected by the initial members of the Board of Directors of the Association. Subsequently, the officers of the Association shall be appointed by the Board of Directors. Only members of the Board shall be eligible for appointment to serve as officers of the Association. The officers shall be appointed to one-year terms, and each officer shall hold office until his/her death, disability, resignation or removal, or until the expiration of his/her term and the appointment of his/her successor. The Association shall publish the names and addresses of all officers within 30 days of their election. Section 3. President. The President shall be the principal executive officer of the Association and, subject to the control of the Board of Directors, shall in general supervise and control all of the business and affairs of the Association. The President shall, when present, preside at all meetings of the members. The President shall sign, with attestation by the Secretary, any deeds, mortgages, bonds, contracts, or other instruments which the Board of -8- Directors has authorized to be executed, except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by these Bylaws to some other officer or agent of the Association, or shall be required by law to be otherwise signed or executed; and in general the President shall perform all duties incident to the office of president and such other duties as may be prescribed by the Board of Directors from time to time. The President, with attestation by the Secretary, shall execute any amendments to the Declaration approved by the membership of the Association. Section 4. Vice President. In the absence of the President or in the event of the President’s death, or inability or refusal to act, the Vice President shall perform the duties of the President, and when so acting shall have all the powers of and be subject to all the restrictions upon the President, and shall perform such other duties as from time to time may be assigned to the Vice President by the President or the Board of Directors. Section 5. Secretary. The Secretary shall: (a) keep minutes of the meetings of Members, and of the Board of Directors, and of all Committees of the Board in one or more books provided for that purpose; (b) see that all notices are duly given in accordance with the provisions of these Bylaws or as required by law; (c) be custodian of the corporate records and of the seal of the Association and see that the seal of the Association is affixed to all documents the execution of which on behalf of the Association under its seal is duly authorized; (d) be authorized to certify and oversee the recordation of amendments to the Declaration on behalf of the Association; (e) keep a register of the postal address of each member which shall be furnished to the Secretary by such member; and (f) in general perform all duties incident to the office of Secretary and such other duties as from time to time may be assigned to the Secretary by the President or by the Board of Directors. Section 6. Treasurer. The Treasurer shall: (a) have charge and custody of and be responsible for all funds and securities of the Association; (b) receive and give receipts for moneys due and payable to the Association from any source whatsoever, and deposit all such moneys in the name of the Association in such depositories as shall be selected in accordance with the provisions of Section 4 of Article IX of these Bylaws; (c) prepare, execute and deliver certificates of Assessments as provided by Section 13 of the Declaration; and (d) in general perform all of the duties incident to the office of treasurer and such other duties as from time to time may be assigned to the Treasurer by the President or by the Board of Directors. Section 7. No financial payments, including payments made in the form of goods and services may be made to any officer of the Association, or to a business, business associate, or relative of any officer, except as expressly provided for in the By-Laws or in payment for services or advances paid on behalf of the Association which are approved in advance by the Board of Directors. ARTICLE IX. CONTRACTS, LOANS, CHECKS, AND DEPOSITS Section 1. Contracts. The Board of Directors may authorize any officer or officers, agent or agents, to enter into any contract or execute and deliver any instrument in the name of -9- and on the behalf of the Association, and such authority may be general or confined to specific instances. Section 2. Loans. No loans shall be contracted on behalf of the Association and no evidence of indebtedness shall be issued in its name unless authorized by the Board of Directors. Such authority may be general or confined to specific instances. Section 3. Checks and Drafts. All checks, drafts or other orders for the payment of money, issued in the name of the Association, shall be signed by the President or the Treasurer of the Association. Section 4. Deposits. All funds of the Association not otherwise employed shall be deposited from time to time to the credit of the Association in such depositories as the Board of Directors may select. ARTICLE X. ADJUDICATORY PANEL Section 1. Appointment of Adjudicatory Panel. The Board of Directors shall, not less than annually, appoint an Adjudicatory Panel of five (5) individuals, all of whom shall be Owners and residents of the Planned Community. Neither members of the Board of Directors nor officers of the Association shall be eligible to serve as members of the Adjudicatory Panel. Members of the Adjudicatory Panel shall be appointed to one-year terms, and each member of the Adjudicatory Panel shall sit until his/her death, disability, resignation or removal, or until the expiration of his/her term and the appointment of his/her successor. Section 2. Hearings. In the event that a fine is assessed against an Owner by the Board of Directors pursuant to Subsection 2(C) Article VI above, the Adjudicatory Panel shall provide to the Owner so fined notice of the violation and an opportunity to be heard regarding the alleged violation and the assessed fine. If within ten (10) days of receipt of the notice the Owner requests in writing a hearing, the Adjudicatory Panel shall hear the matter within twenty (20) days of the date of the written request. Three (3) members of the Panel shall constitute a quorum for the purpose of conducting a hearing. Following such a hearing, the Adjudicatory Panel shall confirm, deny or modify the fine imposed by the Board and shall notify the Owner of its decision. The decision of the Adjudicatory Panel with regard to the fine shall be final. Section 3. Fines. If it is decided that a fine should be imposed the initial fine may not exceed $100.00. If the violation continues for more than five days after the decision is rendered additional fines of $100.00 for each day may be imposed without further hearings. Section 4. Appeals. The Owner may appeal the decision of an Adjudicatory Panel to the Board of Directors by delivering written notice of appeal to the Board of Directors within 15 days after the decision. Section 5. Notwithstanding any other provision herein, the Board of Directors is authorized, on behalf of the Association, to submit any dispute with or claim against the -10- owner(s) of any Lot(s) to voluntary arbitration pursuant to any arbitration program then in effect in the General Court of Justice of New Hanover County, North Carolina. ARTICLE XI. INDEMNIFICATION Any person who at any time serves or has served as an officer, member of the Board of Directors and/or member of the Adjudicatory Panel of the Association or the Architectural Review Committee shall have a right to be indemnified by the Association to the fullest extent permitted by law against (a) reasonable expenses, including attorneys' fees, incurred by him/her in connection with any threatened, pending, or completed civil, criminal, administrative, investigative, or arbitrative action, suit, or proceeding (and any appeal therein), whether or not brought by or on behalf of the Association, seeking to hold him/her liable by reason of the fact that he/she is or was acting in such capacity, and (b) reasonable payments made by him/her in satisfaction of any judgment, money decree, fine, penalty or settlement for which he/she may have become liable in any such action, suit or proceeding. Upon request for payment, the President of the Association shall promptly call a special meeting of the Board of Directors to obtain approval to pay the indemnification required by this bylaw. Such approval may be general or confined to specific instances and shall not be unreasonably withheld. Upon approval by the Board of Directors, the President shall promptly cause the indemnification to be paid to the requesting party. Any person who at any time after the adoption of this bylaw serves or has served as an officer, member of the Board of Directors and/or member of the Adjudicatory Panel of the Association and/or member of the Architectural Review Committee shall be deemed to be doing or to have done so in reliance upon, and as consideration for, the right of indemnification provided herein. Such right shall inure to the benefit of the legal representatives of any such person and shall not be exclusive of any other rights to which such person may be entitled apart from the provision of this bylaw. ARTICLE XII. DISSOLUTION In the event of dissolution of the Association, the residual assets of the Association will be distributed to a nonprofit organization with purposes similar to those of the Association, or to any other organization eligible under the provisions of Chapter 55A of the General Statutes of North Carolina. However, in no event shall the residual assets of the Association be distributed in a fashion that terminates the Association's exempt status under Section 528 of the Internal Revenue Code of 1986 or any corresponding sections or provisions of any future United States Internal Revenue law. The Association shall not enter into voluntary dissolution without first having transferred its waste water collection facilities to some person, Corporation, or other entity acceptable to and approved by the Environmental Management Commission of the State of North Carolina, said approval to be evidenced by the issuance of a permit. ARTICLE XIII. -11- SECTION 528 STATUS The Association shall elect and shall be managed in such fashion as to maintain tax- exempt status under Section 528 of the Internal Revenue Code of 1986. The Association shall not carry on any activities prohibited by an Association electing tax-exempt status under Section 528, or any corresponding sections or provisions of any future United States Internal Revenue law. ARTICLE XIV. GENERAL PROVISIONS Section 1. Seal. The corporate seal of the Association shall consist of two concentric circles between which is the name of the Association and in the center of which is inscribed SEAL; and such seal, as impressed on the margin hereof, is hereby adopted as the corporate seal of the Association. Section 2. Fiscal Year. The fiscal year of the Association shall be January 1 through December 31. Section 3. Amendments. Subject to, and following the termination of, the rights of the Declarant expressed in the Declaration with regard to amendment to these Bylaws, the Members of the Association may amend these Bylaws, repeal these Bylaws and/or adopt new Bylaws by the vote of at least sixty-seven percent (67%) of all existing Lots at any meeting of the membership of the Association properly held and conducted pursuant to Article V above, which amendment shall not alter this percentage vote required for amendment in a manner inconsistent with North Carolina General Statutes § 47F-2-117. Section 4. Conflicts. In the event of any conflict between the terms and provisions of these Bylaws and the terms and provisions of the Declaration, the terms and provisions of the Declaration shall control. Section 5. References to Statutes. All references herein to any statutory provision shall be construed to include and apply to any subsequent amendments to or replacements of such provisions. The foregoing instrument, is hereby approved, accepted and adopted by the undersigned as the Bylaws of JASMINE SOUTH HOMEOWNERS’ ASSOCIATION, INC. IN WITNESS WHEREOF, the initial members of the Board of Directors of the Association have set their hands and seals, effective the 10th day of August , 2022. _______________________________________ MARY J. JOHNSON, DIRECTOR -12- _______________________________________ CRAIG JOHNSON, DIRECTOR _______________________________________ HEATHER WILLIAMS REAVES, DIRECTOR