HomeMy WebLinkAboutDeclaration of Covenants - Jasmine South1
DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS
FOR
JASMINE SOUTH
THIS DOCUMENT REGULATES OR PROHIBITS THE DISPLAY OF THE FLAG OF THE
UNITED STATES OF AMERICA OR STATE OF NORTH CAROLINA.
THIS DOCUMENT REGULATES OR PROHIBITS THE DISPLAY OF POLITICAL SIGNS.
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This DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS
FOR JASMINE SOUTH (this “Declaration”) is made this _____ day of _____________,
202__, by RIVER BIRCH INVESTMENTS, LLC, a limited liability company organized and
existing under the laws of the state of North Carolina (“Declarant”).
Article I
Creation of the Community
1.1. Purpose and Intent.
Declarant, as the owner of the real property described in Exhibit “A-1” and Exhibit “A-2”
which is attached hereto and incorporated herein by reference, intends by Recording this
Declaration to establish a general plan of development for the planned community known as
JASMINE SOUTH, a community consisting of a residential tract. This Declaration provides for
JASMINE SOUTH’s overall development, administration, maintenance, and preservation. An
integral part of the development plan is the creation of JASMINE SOUTH HOMEOWNERS’
ASSOCIATION, INC., a North Carolina nonprofit corporation of which all owners of Lots in
JASMINE SOUTH shall be members, to own, operate and/or maintain various common areas
and community improvements and to administer and enforce this Declaration and the other
Governing Documents referenced in this Declaration.
The property described in Exhibit “A-1” and Exhibit “A-2” shall be developed as
residential with covenants permitting residential single-family home use, as expressed herein.
1.2. Binding Effect.
All property described in Exhibit “A-1” and Exhibit “A-2” shall be owned, conveyed,
and used subject to the provisions of this Declaration, which shall run with the title to such
property, and to the provisions of Chapter 47F of the North Carolina General Statutes, the “North
Carolina Planned Community Act”. This Declaration shall be binding upon the Declarant,
JASMINE SOUTH HOMEOWNERS’ ASSOCIATION, INC., and all other Persons having any
right, title, or interest in any portion of JASMINE SOUTH, their heirs, successors, successors-in-
title, and assigns.
This Declaration, as it may be amended, shall remain in effect and shall be enforceable
by Declarant, JASMINE SOUTH HOMEOWNERS’ ASSOCIATION, INC., any Owner, and
their respective legal representatives, heirs, successors, and assigns, for a term of forty (40) years
from the date this Declaration is Recorded. After such time, this Declaration shall be extended
automatically for successive periods of ten (10) years each, unless an instrument signed by
eighty (80%) percent of Votes of the Lots located in JASMINE SOUTH has been Recorded
within the year preceding any extension, agreeing to terminate this Declaration, in which case it
shall terminate as of the date specified in such instrument. Nothing in this Section shall be
construed to permit termination of any easement created in this Declaration without the consent
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of the holder of such easement.
1.3. Governing Documents.
JASMINE SOUTH’s Governing Documents consist of this Declaration, and any
applicable amended declaration, amendment to declaration or supplemental declaration (however
same may be titled or captioned); the Articles of Incorporation of JASMINE SOUTH
HOMEOWNERS’ ASSOCIATION, INC., and its By-Laws; the Architectural Design Standards;
the Restrictions and Rules; Board resolutions; and Recorded Plats of JASMINE SOUTH, all as
they may be amended from time to time.
Nothing in this Section shall preclude any Amended Declaration, Amendment to
Declaration or Supplemental Declaration or other Recorded covenants applicable to any portion
of JASMINE SOUTH from containing additional restrictions or provisions which are more
restrictive then the provisions of this Declaration and, in such case, the more restrictive shall
control. JASMINE SOUTH HOMEOWNERS’ ASSOCIATION, INC., may, but shall not be
required to, enforce any such covenants, restrictions or other instruments.
The Governing Documents apply to all Owners and occupants of property within
JASMINE SOUTH, as well as to their respective tenants, guests, licensees and invitees. If a Lot
is leased, the lease shall provide that the tenant and all occupants of the leased Lot are bound by
and obligated to comply with the Governing Documents. Leasing of Lots shall be subject to
Section 3.4(f) hereof. The Association shall be a third-party beneficiary of any lease with right
to enforce the lease with regard to any failure of any tenant to comply with the Governing
Documents. The Association shall have right to injunctive relief against the Owner and the
tenant to enjoin further failure to comply with the Governing Documents or failure of the Owner
to enforce the lease against the tenant with regard thereto.
If any court should determine that any provision of this Declaration is invalid, or invalid
as applied in a particular instance, such determination shall not affect the validity of other
provisions or applications of such provision.
Throughout the Governing Documents, should there be diagrams to illustrate the
concepts discussed as an aid in the reader’s comprehension, such diagrams shall be for
illustrative purposes only. In the event of a conflict between any diagram and the text of the
Governing Documents, the text shall control.
Throughout the Governing Documents, the titles, captions and headings are inserted for
convenience of reference only and are not intended to be a part of or to affect in any way the
meaning or interpretation of the Governing Documents. As used in the Governing Documents,
all pronouns shall include the masculine, feminine, neuter, singular and plural thereof whenever
the context and facts require such construction. All references to sections, schedules or exhibits
are to sections, schedules or exhibits in or to the Governing Document in which the reference is
made, unless otherwise specified. All uses of the word “including” shall mean “including,
without limitation,” unless the context shall indicate otherwise. Unless otherwise specified, the
words “hereof,” “herein” and “hereunder” and words of similar import when used in a
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Governing Document shall refer to the Governing Document in which the word appears as a
whole and not to any particular provision of the Governing Document. Unless otherwise
specified, all meanings attributed to defined terms herein shall be equally applicable to both the
singular and plural forms of the terms so defined and defined terms may be used in singular or
plural form as defined terms. As used herein, the following shall be construed to mean that the
act or action is mandatory, without need for modification by words such as “sole”, “exclusive,”
“must” or “only”: “will,” “shall,” and “must.” As used herein, the following shall be construed
to mean that the act or action is permissive: “may” and “can.”
Article II
Concepts and Definitions
The terms used in the Governing Documents shall generally be given their natural,
commonly accepted definitions unless otherwise specified. Capitalized terms shall be defined as
set forth below.
“Affiliate of Declarant”: Shall mean any Person who succeeds to any special declarant
rights and who controls, is controlled by, or is under common control with the Declarant, and
shall also include any Person which is under common control with the Declarant and holds title
to a Lot but has not succeeded to any special declarant rights.
“Amendment to Declaration”: Shall mean an instrument Recorded pursuant to the terms
of this Declaration which amends this Declaration, or creates or imposes other or additional
easements, restrictions and obligations on the land described in such instrument which land is
also described in this Declaration, or any or all of the foregoing.
“Architectural Design Standards”: Shall mean the guidelines and standards for
architecture, design, construction, landscaping and exterior items of homes constructed on Lots
adopted pursuant to Article IV, as they may be amended from time to time.
“Area of Common Responsibility”: Shall mean the Common Area, together with such
other areas, if any, for which the Association has or assumes responsibility pursuant to the terms
of this Declaration, any Amended Declaration, Amendment to Declaration or Supplemental
Declaration, or other applicable covenants, contracts, other deed, or agreements, including the
Townhome Maintenance Elements.
“Articles”: Shall mean JASMINE SOUTH HOMEOWNERS’ ASSOCIATION, INC.’s
Articles of Incorporation, filed with the North Carolina Secretary of State, as they may be
amended from time to time.
“Association”: Shall mean JASMINE SOUTH HOMEOWNERS’ ASSOCIATION,
INC., a North Carolina nonprofit corporation, its successors or assigns.
“Base Assessment”: Shall mean any assessment levied on all Lots subject to assessment
under Article VIII to fund Common Expenses for the general benefit of all Lots, as determined in
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accordance with Article VIII.
“Board of Directors” or “Board” or “Executive Board”: Shall have the same meaning
and shall mean the body responsible for administration of the Association, selected as provided
in the By-Laws and generally serving the same role as the board of directors under North
Carolina corporate law and shall be the Executive Board of the Association as described in the
Planned Community Act.
“Builders”: Shall mean Herrington Classic Homes, LLC, and any other licensed general
contractor which may be approved in writing by the Declarant, its successor or assigns, as an
approved general contractor, and which purchases one or more Lots for the purpose of
constructing improvements for later sale to retail purchasers.
“By-Laws”: Shall mean the By-Laws of JASMINE SOUTH HOMEOWNERS’
ASSOCIATION, INC., as they may be amended from time to time. Any Member will upon
request to the Association be furnished a copy of the current By-Laws of the Association at no
charge. “Bylaws,” “ByLaws,” “By Laws,” By-laws” or similar variants shall have the same
meaning as By-Laws.
“Class “B” Control Period”: Shall mean the period from the date of recording of this
Declaration until it shall terminate as provided herein. The Class “B” Control Period shall
terminate on the first to occur of the following:
(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” have certificates of occupancy issued
thereon and have been conveyed to Class “A” Members other than Builders;
(b) 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.
“Common Area”: Shall mean all areas identified on the Plat as Common Area, and all
real property not identified on the Plat as a Lot, and all personal property of the Association,
including private roads, public roads not accepted for maintenance by the State of North
Carolina, New Hanover County, or any municipality authorized to accept dedication and
maintenance responsibility, and all easement areas for utilities or drainage (including easement
areas lying within a Lot) and all utility facilities not conveyed to a public or private utility, all
drainage and stormwater facilities including but not limited to stormwater ponds, Conservation
areas, and all other property and/or easements, which the Association owns, leases, or to which
the Association otherwise holds possessory or use rights in for the common use and enjoyment
of the Owners. The term shall include the Limited Common Area, as defined below, if any.
“Common Expenses”: Shall mean the actual and estimated expenses incurred, or
anticipated to be incurred, by the Association for the general benefit of all Owners, together with
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any allocation to reserves, as the Board may find necessary and appropriate pursuant to the
Governing Documents. Common Expenses shall not include any expenses incurred during the
Class “B” Control Period for initial development or other original construction costs unless
Members representing a majority of the total Class “A” vote of the Association approve.
Payments due under leases of capital improvements, including streetlights and any lighting of
Common Area, shall not be considered an initial development or original construction cost.
“Community-Wide Standard”: Shall mean the standard of conduct, maintenance, or
other activity generally prevailing at JASMINE SOUTH, or the minimum standards established
pursuant to the Architectural Design Standards, Restrictions and Rules, and Board resolutions,
whichever is a higher standard. Declarant shall establish initially such standard and it may
contain both objective and subjective elements. The Community-Wide Standard may evolve as
development progresses and as the needs and desires within JASMINE SOUTH evolve.
“Conservation Areas”: Shall mean and refer to all lands within the area contained in
JASMINE SOUTH as shown on the Plat and designated as “404 Wetlands,” if any.
“Conservation Setbacks”: Shall mean any adjacent “25’ Wetland Setback” shown on the
Plat, if any.
“JASMINE SOUTH”: Shall mean the real property described in Exhibit “A-1” and
Exhibit A-2”.
“Declarant”: Shall mean RIVER BIRCH INVESTMENTS, LLC, a North Carolina
limited liability company, or any successor or assign who: 1) takes title to any portion of the
property described in Exhibit “A-1” and Exhibit “A-2” for the purpose of development and/or
sale and 2) who or which is specifically granted some or all of Declarant’s rights pursuant to a
Recorded instrument executed by the immediately preceding Declarant.
“Dwelling”: Shall mean a residential structure constructed on a lot for use as a residence,
whether capitalized for use as a defined term, or in lower case, and shall be used interchangeably
with “home,” which shall have the same meaning as dwelling, likewise without regard to use of
capitalization.
“Governing Documents”: Shall mean a collective term referring to this Declaration and
any applicable Amended Declaration, Amendment to Declaration or Supplemental Declaration,
the By-Laws and the Articles of Incorporation of the Association, the Architectural Design
Standards, the Restrictions and Rules, Board resolutions, and Recorded Plat(s) of JASMINE
SOUTH, as any one or more of which may be amended from time to time.
“Limited Common Area”: Shall mean a portion of the Common Area primarily
benefitting one or more, but less than all, Lots, if any, as more particularly described in Article
XII.
“Lot(s)”: Shall mean and refer to any portion of the Planned Community designated for
separate ownership by a Lot Owner and shown on a Recorded subdivision plat and shall include
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only Single-family Lots.
“Lot Owner”: Shall mean the Declarant or any one or more other Persons who hold the
record fee simple title to any Lot, including contract sellers, but excluding contract buyers and
excluding those having such interest merely as security for the performance of an obligation.
“Member”: Shall mean a Person subject to membership in the Association pursuant to
Section 6.2.
“Mortgage”: Shall mean a mortgage, a deed of trust, a deed to secure debt, or any other
form of security instrument affecting title to any Lot. The term “Mortgagee” shall refer to a
beneficiary or holder of a Mortgage; and the term “Mortgagor” shall refer to any Person who
gives a Mortgage.
“Owner”: Shall mean Lot Owner.
“Person”: Shall mean a natural person, a corporation, a limited liability company, a
partnership, a trustee, or any other legal entity.
“Planned Community Act” or “North Carolina Planned Community Act”: Shall mean the
North Carolina Planned Community Act, (N.C.G.S. §47F-1-101 et. Seq.), as the same may be
amended from time to time.
“Plat”: Shall mean the subdivision plat or map of JASMINE SOUTH, a copy of which is
attached hereto as Exhibit “A-2,” as same may be amended, supplemented, or superseded by any
additional plats, supplemental plats, revision plats, or any amendments or revisions thereto
however captioned, which may be Recorded by the Declarant. “Platted” shall mean shown on a
Recorded Plat.
“Record” “Recording” or “Recorded”: Shall mean the filing of an instrument in the
office of the Register of Deeds of New Hanover County, North Carolina, or such other place as
may be designated as the official location for recording deeds, declarations, plats, and similar
documents affecting title to real estate.
“Restrictions and Rules”: Shall mean the initial restrictions and rules set forth in Exhibit
“B” as they may be supplemented, modified, and repealed pursuant to Article III.
“Site Plan”: Shall mean the “Site Development Plan for JASMINE SOUTH,” approved
by the Planning and Land Use Department of the County of New Hanover, NC, on
, 2020 as the same may be amended from time to time. The Site Plan is not required to be
Recorded.
“Single-family Lot(s)”: Shall mean the Lots on which unattached single-family
dwellings (homes) are located or are to be located, initially limited to Lots 1 through 17, and
Lots 19 through 37. There is intentionally no Lot 18, and there are no Lots which are not Single-
family Lots.
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“Special Assessment”: Shall mean Assessments levied in accordance with Section 8.3.
“Specific Assessment”: Shall mean Assessments levied in accordance with Section 8.5.
“Townhome(s)”: Shall mean the attached single-family dwelling(s) located on a Lot.
“Townhome Lot(s)”: Shall mean the Lots on which attached single-family dwellings are
located or are to be located, initially limited to Lots 1 through 12, inclusive and Lots 15 through
26 inclusive.
“Townhome Maintenance Elements”: Shall mean (i) the exterior of all Townhomes,
including by way of illustration, but not limited to, roofs, exterior building surfaces, decks,
porches, gutters and downspouts, and (ii) yards and other improvements, including by way of
illustration, but not limited to, travelways, walkways, privacy fences for the sole use of a Lot,
leaves, shrubs and grass but excluding that portion of the yard located within any privacy
fencing. Declarant may, with regard to Additional Property, by amendment to this Declaration,
add Townhome Maintenance Elements to the Planned Community without the consent of any
Lot Owners (so long as the Owners of the Townhome Maintenance Elements pay the cost of
their operation and maintenance through Annual Townhome Assessments as hereinafter
defined).
“Voting Member”: Shall mean the representative selected by a Class “A” Member to cast
the Class “A” vote attributable to that Class “A” Member’s Lot on all matters requiring a vote of
the membership as designated pursuant to Section 6.3(c) (except as otherwise specifically
provided in this Declaration and in the By-Laws). The term “Voting Member” shall also refer to
any alternate Voting Members so selected pursuant to Section 6.3(c), acting in the absence of the
Voting Member.
Article III
Use and Conduct
3.1. Framework for Regulation.
As part of the general plan of development for JASMINE SOUTH, the Governing
Documents establish a framework of affirmative and negative covenants, easements, and
restrictions that govern JASMINE SOUTH. Within that framework, the Board and the Members
can respond to unforeseen problems and changes in circumstances, conditions, needs, desires,
trends, and technology. Therefore, this Article establishes the Restrictions and Rules set forth in
Exhibit “B” and provides procedures for modifying and expanding said Restrictions and Rules.
This Article is not intended to apply to rules and regulations relating to use and operation of the
Common Area which the Board may adopt by resolution pursuant to Section 7.1(c), nor to
administrative policies which the Board may adopt to interpret, define, or implement the
Restrictions and Rules.
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3.2. Rule Making Authority.
(a) The Declarant hereby reserves during the “Class “B” Control Period” the right,
power and authority to establish, adopt, revise, and restate from time to time such rules and
regulations regarding the development, as it deems appropriate.
(b) Subject to the terms of this Article and the Board’s duty to exercise business
judgment and reasonableness on behalf of the Association and its Members, the Board may
modify, cancel, limit, create exceptions to, add to or expand the Restrictions and Rules. The
Board shall send notice to all Owners concerning any proposed action regarding the Restrictions
and Rules at least five (5) business days prior to the Board meeting at which such action is to be
considered. Members shall have a reasonable opportunity to be heard at a Board meeting prior
to such action being taken.
Such action shall become effective, after compliance with subsection (d), unless
Members representing more than sixty-seven (67%) percent of the total Class “A” votes in the
Association disapprove such action at a meeting, or the Class “B” Member, if any, disapproves
the such action. The Board shall have no obligation to call a meeting of the Members to consider
disapproval except upon receipt of a petition of the Members as required for special meetings in
the By-Laws. Upon such petition of the Members prior to the effective date of any Board action
under this Section 3.2(b), the proposed action shall not become effective until after such meeting
is held, and then subject to the outcome of such meeting.
(c) Alternatively, Members, representing more than sixty-seven (67%) percent of the
total Class “A” votes in the Association at an Association Members’ meeting duly called for
such purpose, may vote to adopt rules that modify, cancel, limit, create exceptions to, add to or
expand the Restrictions and Rules then in effect. Such action shall require approval of the Class
“B” Member, if any.
(d) Prior to any action taken under this Section becoming effective, the Board shall
send a copy of the new rule or explanation of any changes to the Restrictions and Rules to each
Owner. The effective date shall be not less than thirty (30) days following distribution to
Owners. The Association shall provide, without cost, a copy of the Restrictions and Rules then
in effect to any requesting Member or Mortgagee.
(e) No action taken under this Article shall have the effect of modifying, repealing or
expanding the Architectural Design Standards or any provision of this Declaration other than the
Restrictions and Rules set forth in Exhibit “B.” In the event of a conflict between the
Architectural Design Standards and Restrictions and Rules, the Architectural Design Standards
shall control.
(f) The procedures required under this Section 3.2 shall not apply to the enactment
and enforcement of administrative rules and regulations governing use of the Common Area
unless the Board chooses in its discretion to submit to such procedures. Examples of such
administrative rules and regulations shall include, but not be limited to, hours of operations of a
recreational facility, speed limits on private roads, and the method of allocating or reserving use
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of a facility (if permitted) by particular individuals at particular times.
3.3. Owners’ Acknowledgment and Notice to Purchasers.
All Owners are given notice that use of their Lots and the Common Area is limited by the
Restrictions and Rules as modified from time to time. By acceptance of a deed, each Owner
acknowledges and agrees that the use and enjoyment and marketability of his or her Lot can be
affected by this provision and that the Restrictions and Rules may change from time to time. All
purchasers of Lots are on notice that the Association may have adopted changes. Copies of the
current Restrictions and Rules may be obtained from the Association.
3.4 Protection of Owners and Others.
Except as may be set forth in this Declaration (either initially or by amendment) or in the
Restrictions and Rules set forth in Exhibit “B”, all Restrictions and Rules shall comply with the
following provisions:
(a) Similar Treatment. Similarly situated Owners shall be treated similarly.
(b) Displays; Political Signs; Flags. The rights of Owners to display religious and
holiday signs, symbols, and decorations inside the Dwelling constructed on their Lots of the
kinds normally displayed inside Dwellings located in single-family residential neighborhoods
shall not be abridged, except that the Association may adopt time, place and manner restrictions
with respect to displays visible from outside the Dwelling.
The ARC (as defined in Section 4.2), shall have the authority to approve all signs to be
displayed on Lots (other than in the interior of the Dwellings and not visible from the street)
prior to installation and may impose size limits and other reasonable restrictions. No advertising
signs or billboards or other advertising structure(s) of any kind shall be displayed on any Lot
without prior written approval of the ARC. This covenant shall not apply to signs erected by the
DECLARANT, including signs used to identify and advertise the Properties as a whole.
DECLARANT or ARC has the right to enter upon any Lot and remove any unapproved sign(s).
Without limiting the foregoing, the Association shall issue guidelines from time to time outlining
JASMINE SOUTH’s policy for the posting of “for sale” signs and similar temporary signs by or
upon any Lot (which policy shall include the permitted dimensions and appearance of such signs
and may even prohibit such signs altogether).
Notwithstanding anything to the contrary in the foregoing paragraph, and except as
otherwise permitted by law, no rules shall regulate the content of political signs within
JASMINE SOUTH. To the extent permitted by law, rules may regulate the time, place and
manner of posting such signs (including design criteria). With regard to the regulation of
political signs, the Association, subject to both the rule-making authority established under
Section 3.2 herein, and the provisions of the North Carolina Planned Community Act, may (i)
prohibit the display of political signs earlier than forty-five (45) days before the day of an
election and later than seven (7) days after an election day, and/or (ii) regulate the size and
number of political signs that may be placed on a Lot (but only to the extent the Association’s
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regulation is no more restrictive than any applicable city, town or county ordinance that regulates
the size and number of political signs on residential property). If the local government in which
the applicable property is located does not regulate the size and number of political signs on
residential property, the Association shall permit at least one (1) political sign with the maximum
dimensions of 24 inches by 24 inches on a Lot. For the purposes of this paragraph, a “political
sign” means a sign that attempts to influence the outcome of an election, including supporting or
opposing an issue on the election ballot. The provisions of this grammatical paragraph shall
apply to Owners of property who display political signs on property owned exclusively by them
and does not apply to Common Area, easements, rights of way, or other areas owned by others.
No political signs shall be displayed on Common Area.
No outdoor statuary, flag or other decorative object may be displayed on any Lot unless it
is in compliance with the Governing Documents, including the Architectural Design standards.
Notwithstanding any other provisions herein, the American Flag and/or the North Carolina Flag
having the maximum dimensions of four feet by six feet (4’ x 6’) may be displayed on an
Owner’s own Lot. Any flags will be displayed in accordance with traditional rules and patriotic
customs set forth in 4 U.S.C. §5-10, as amended, governing the display and use of the American
Flag.
(c) Household Composition. No rule shall interfere with the Owners’ freedom to
determine the composition of their households, except that to the extent permitted by law, the
Association shall have the power to require that all occupants be members of a single
housekeeping unit and limit the total number of occupants permitted in each Dwelling on the
basis of the size and facilities of the Lot and its fair use of the Common Area.
(d) Activities Within Dwellings. No rule shall interfere with the activities carried on
within the confines of Dwellings, except that, to the extent permitted by law, the Association
may prohibit activities not normally associated with property restricted to residential use, and it
may restrict or prohibit any activities that create monetary costs for the Association or other
Owners, that create a danger to the health or safety of occupants of other Dwellings, that
generate excessive noise or traffic, that create unsightly conditions visible outside the Dwelling,
or that create an unreasonable source of annoyance.
(e) Allocation of Burdens and Benefits. Nothing in this provision shall prevent the
Association from changing the Common Area available, from adopting generally applicable
rules for use of Common Area, or from denying use privileges to those who are delinquent in
paying assessments, abuse the Common Area, or violate the Governing documents. This
provision does not affect the right to increase the amount of assessments as provided in Article
VIII.
(f) Alienation. No rule shall prohibit leasing or transfer of any Lot, or require consent
of the Association or Board for leasing or transfer of any Lot, provided, the Association or the
Board may require a minimum lease term of up to twelve (12) months. The current minimum
lease term as provided in Exhibit B is six (6) months. The Association may require that Owners
use lease forms approved by the Association or may require that Owners use lease forms which
include provisions specified by the Association or provisions specified herein, and may require
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that lease forms be submitted for review and approval or comment by the Association or its legal
counsel in advance of lease execution, but shall not impose any fee on the lease or transfer of any
Lot greater than an amount reasonably based on the costs to the Association of administering that
lease or transfer.
(g) Abridging Existing Rights. No rule shall require an Owner to dispose of personal
property that was in or on a Lot prior to the adoption of such rule if such personal property was
in compliance with all rules previously in force. This exemption shall apply only during the
period of such Owner’s ownership of the Lot and shall not apply to subsequent Owners who take
title to the Lot after the adoption of the rule.
(h) Reasonable Rights to Develop. No rule or action by the Association or Board
shall unreasonably impede Declarant’s right to develop JASMINE SOUTH.
The limitations in subsections (a) through (g) of this section shall only limit rule making
authority exercised under Section 3.2; they shall not apply to amendment to this Declaration
adopted in accordance with Article XVIII.
3.5. No Alternative Forms of Ownership.
Formation of a multiple-unit condominium or a timeshare of a Lot is inconsistent with the
Community-wide Standard and the plan of development. No Lot may be made a condominium
having more than one unit, or used for operation of a timesharing, fraction-sharing, or similar
program whereby the right to exclusive use of the Lot rotates among participants in the program
on a fixed or floating time schedule over a period of years.
Article IV
Architecture and Landscaping
4.1 General.
No structure or thing shall be placed, erected, installed, or maintained upon any Lot and
no improvement or other work (including staking, clearing, excavation, grading and other site
work, exterior alterations of existing improvements, or planting or removal of landscaping) shall
take place within JASMINE SOUTH, except in compliance with this Article and the
Architectural Design Standards. With regard to the provisions of this Article, the terms,
“structures”, “buildings” and “improvements” shall include, but not be limited to any Dwelling,
garage, outbuilding, shed, fence, wall, sidewalk, hedge, mass planting, change in grade or slope,
drainage pipe, drainage canal, ditch, swale, catch basin, swimming pool, tree house, playhouse,
dog house, sign, flag pole, exterior illumination, monument or marker, outdoor statuary, exterior
lights, security lights, storm door, well utility facility, mailbox, patio, deck, screening for outdoor
trash cans or other purposes, sprinkler system, driveway, outdoor decorative objects, shrubbery,
or landscaping.
Exterior painting and choice of color for exterior painting and all exterior maintenance,
repairs, and remodeling and other exterior changes are the exclusive responsibility of the
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Association. Any repair, or rebuilding the exterior of a structure, including but not limited to
siding material, roofing material, doors, windows, shutters, and garage doors, are the exclusive
responsibility of the Association. Any Owner may remodel, paint, or redecorate the interior of
his or her Dwelling without approval. However, modifications to the interior of portions of a Lot
visible from outside the structure, including but not limited to screened or otherwise enclosed
porches, patios, and similar, shall be subject to approval.
All Dwellings constructed on any portion of JASMINE SOUTH shall be designed by and
built in accordance with the plans and specifications of a licensed architect, general contractor or
engineer, unless Declarant or its designee otherwise approves in its sole discretion.
This Article may not be amended without the prior written consent of Declarant, for so
long as Declarant or any Affiliate of Declarant owns any property subject to this Declaration or
which may become subject to this Declaration.
Declarant’s rights reserved under this Article shall continue for so long as Declarant or
any Affiliate of Declarant owns any property subject to this Declaration or which may become
subject to this Declaration, unless earlier terminated in an instrument the Declarant Records in
the public records of New Hanover County.
4.2 Architectural Review.
(a) By Declarant. By accepting a deed or other instrument conveying any interest in
any portion of JASMINE SOUTH, each Owner acknowledges that as the developer of JASMINE
SOUTH and as an owner of portions of JASMINE SOUTH as well as other real estate within the
vicinity of JASMINE SOUTH, Declarant has a substantial interest in ensuring that the
improvements within JASMINE SOUTH enhance Declarant’s reputation as a community
developer and do not impair Declarant’s ability to market, sell, or lease its property. Therefore,
each Owner agrees that no activity within the scope of this Article shall commence on such
Owner’s Lot unless and until Declarant or its designee has given its prior written approval for
such activity, which approval may be granted or withheld in the Declarant’s or its designee’s sole
discretion.
In reviewing and acting upon any request for approval, Declarant or its designee shall be
acting solely in Declarant’s interest and shall owe no duty to any other Person. Declarant may
designate one or more Persons to act on its behalf in reviewing applications hereunder.
Declarant hereby delegates its responsibility for administration of the Architectural
Design Standards and all other responsibilities under this Article IV to the Architectural Review
Committee (the “ARC”), the members of which shall be appointed by the Board of Directors. All
responsibilities delegated to the ARC herein shall be subject to (i) Declarant’s right to revoke
such delegation at any time and reassume jurisdiction over the matters previously delegated; and
(ii) Declarant’s right to veto any decision which Declarant determines, in its sole discretion, to be
inappropriate or inadvisable for any reason. So long as Declarant has any rights under this
Article, the jurisdiction of the ARC shall be limited to such matters as Declarant specifically
delegates as provided herein.
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(b) Architectural Review Committee. The ARC shall consist of three persons (or the
Declarant during the “Class “B” Control Period”) and shall have exclusive jurisdiction over all
construction and improvements described in this Article IV. The members of the ARC shall
serve and may be removed and replaced in the Board’s discretion. The members of the ARC
need not be Members of the Association or representatives of Members, and may, but need not,
include architects, engineers or similar professionals, who may be compensated in such manner
and amount if any, as the Board may establish.
(c) Fees; Assistance. Declarant and the Association may employ architects,
engineers, or other persons as deemed necessary to perform the review. For purposes of this
Article, the ARC, Declarant, or person(s) or entity(ies) employed by them to perform the review
shall be referred to as the “Reviewer”. The Reviewer may establish and charge reasonable fees
for review of applications and may require such fees to be paid in full prior to review of any
application. Such fees may include the reasonable costs incurred in having any application
review by architects, engineers or other professionals. The Board may include all or a portion of
the compensation of the Reviewer and the reasonable costs incurred by the Reviewer, including
the fees of such architects, engineers or other professionals in the Association’s annual operating
budget, or may require the Owner requesting review to pay all or a portion of the compensation
of the Reviewer and the reasonable costs incurred by the Reviewer, including the fees of such
architects, engineers or other professionals.
4.3 Standards and Procedures.
(a) Architectural Design Standards. The Architectural Design Standards may contain
general provisions applicable to all of JASMINE SOUTH. The Architectural Design Standards
are intended to provide guidance to Owners and Builders regarding matters of particular concern
to the Reviewer in considering applications. The Architectural Design Standards are not the
exclusive basis for decisions of the Reviewer and compliance with the Architectural Design
Standards does not guarantee approval of any application.
Declarant may prepare the initial Architectural Design Standards. Declarant shall have
sole and full authority to adopt, alter or amend the Architectural Design Standards for so long as
Declarant or any Affiliate of Declarant owns any property subject to this Declaration or which
may become subject to this Declaration, notwithstanding a delegation of review authority to the
ARC. Upon termination or delegation of Declarant’s right to amend, the ARC shall have the
authority to amend the Architectural Design Standards subject to the approval of the Board.
Any amendments to the Architectural Design Standards shall be prospective only and
shall not apply to require modifications to or removal of structures previously approved once the
approved construction or modification has commenced. There shall be no limitation on the scope
of amendments to the Architectural Design Standards, and such amendments may remove
requirements previously imposed or otherwise make the Architectural Design Standards less
restrictive.
The Reviewer shall make the Architectural Design Standards available to Owners and
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Builders who seek to engage in development or construction within JASMINE SOUTH. In
Declarant’s discretion, such Architectural Design Standards may be Recorded, in which event
the Recorded version, as it may unilaterally be amended from time to time, shall control in the
event of any dispute as to which version of the Architectural Design Standards was in effect at
any particular time, but such amendments shall be effective regardless of whether also Recorded.
(b) Procedures. Except as otherwise specifically provided in the Architectural Design
Standards, no activities shall commence on any portion of JASMINE SOUTH until an
application for approval has been submitted to and approved by the Reviewer. Such applications
shall include plans and specifications showing site layout, structural design, exterior elevations,
exterior materials and colors, landscaping, drainage, exterior lighting, irrigation, and other
features of proposed construction, as applicable. The Architectural Design Standards and the
Reviewer may require the submission of such additional information as may be reasonably
necessary to consider any application.
In reviewing each submission, the Reviewer may consider any factors it deems relevant,
including, without limitation or obligation, the following: visual aesthetics, quality of
workmanship and design, natural platforms and finish grade elevations; the suitability of the
proposed building, improvements, structure, or landscaping and the materials of which it is to be
built; the site upon which it is proposed to erect the same, the harmony of external design with
surrounding structures and environment; and the effect thereof on the adjacent or neighboring
property. Decisions may be based on purely aesthetic considerations or on preservation of a
degree of uniformity within the subdivision. Each Owner acknowledges that determinations as to
such matters are purely subjective and opinions may vary as to the desirability and/or
attractiveness of particular improvements. The Reviewer shall have the sole discretion to make
final, conclusive, and binding determinations on matters of aesthetic judgment and such
determinations shall not be subject to review so long as made in good faith and in accordance
with the procedures set forth herein.
The Reviewer shall use good faith efforts to make a determination on each application
within thirty (30) days after receipt of a completed application and all required information. The
Reviewer may (i) approve the application, with or without conditions; (ii) approve a portion of
the application and disapprove other portions; or (iii) disapprove the application.
The Reviewer shall notify the applicant in writing of the final determination on any
application within thirty (30) days after Reviewer’s determination on such application. In the
case of disapproval, the Reviewer may, but shall not be obligated to, specify the reasons for any
objections and/or offer suggestions for curing any objections.
In the event that the Reviewer fails to respond within sixty (60) days after Reviewer’s
receipt of a completed application and all required information, approval shall be deemed to have
been given. However, no approval, whether expressly granted or deemed granted shall be
inconsistent with the Architectural Design Standards unless a written variance has been granted
pursuant to Section 4.5. Notice shall be deemed to have been given at the time the envelope
containing the response is deposited with the U.S. Postal Service. However, personal delivery of
such written notice shall be sufficient and shall be deemed to have been given at the time of
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delivery to the applicant.
If construction does not commence on a project for which plans have been approved
within one (1) year after the date of approval, such approval shall be deemed withdrawn and it
shall be necessary for the Owner to reapply for approval before commencing any activities. Once
construction is commenced, it shall be diligently pursued to completion. All work shall be
completed within one (1) year of commencement unless otherwise specified in the notice of
approval or unless the Reviewer grants and extension in writing, which it shall not be obligated
to do. If approved work is not completed within the required time, it shall be considered
nonconforming and shall be subject to enforcement action by the Association, Declarant, or any
aggrieved owner.
The Reviewer may, by resolution, exempt certain activities from the application and
approval requirements of this Article, provided such activities are undertaken in strict
compliance with the requirements of such resolution.
(c) Restriction – New Application Required. No Class “A” Member shall make any
improvements to a Lot other than in accordance with plans which have been approved by the
Reviewer. No plans for additional improvements not included in the original or any amended
and approved plans for the initial construction of the Dwelling, including but not limited to
outbuildings, fences, statuary, gazebos, trellises, sunroom additions, screened porches, decks,
and the like not included in such plans for the initial Dwelling, shall be approved by the
Reviewer until the last of the following has occurred, and then only after making separate new
application to the Review and receipt of approval of plans for same:
(i) Conveyance of title to the Lot to the Class “A” Member;
(ii) Final Inspection has been passed by the Building Inspector and Issuance of the
Certificate of Occupancy for the improvements approved by the Reviewer for the
initial construction of the Dwelling and any amendments thereto which have been
approved by the Reviewer has been issued;
(iii) Completion of all punch-list work and removal of all equipment and materials
from the Lot by the Builder; and
(iv) The Class “A” Member has in effect homeowners’ insurance with premium
prepaid and has provided a certificate of insurance for same to the Reviewer.
4.4 No Waiver of Future Approvals.
Each Owner acknowledges that the persons reviewing applications under this Article will
change from time to time and that opinions on aesthetic matters, as well as interpretation and
application of the Architectural Design Standards, may vary accordingly. In addition, each
Owner acknowledges that it may not always be possible to identify objectionable features until
work is completed, in which case it may be unreasonable to require changes to the improvements
involved, but the Reviewer may refuse to approve similar proposals in the future. Approval of
applications or plans, or in connection with any other matter requiring approval, shall not be
deemed to constitute a waiver of the right to withhold approval as to any similar applications,
plans, or other matters subsequently or additionally submitted for approval.
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4.5 Variances.
The Reviewer may authorize variances from compliance with any of its standards and
procedures when circumstances such as topography, natural obstructions, hardship, or aesthetic
or environmental considerations require, but only in accordance with duly adopted rules and
regulations. No variance shall (a) be effective unless in writing; (b) be effective if contrary to this
Declaration; or (c) preclude the Reviewer from denying a variance in other circumstances. For
purposes of this Section, the inability to obtain approval of any governmental agency for the
issuance of any permit, or the terms of any financing shall not be considered a hardship
warranting a variance.
4.6 Limitation of Liability.
The standards and procedures established by this Article are intended as a mechanism for
maintaining and enhancing the overall aesthetics of JASMINE SOUTH. They do not create any
duty to any Person. Review and approval of any application pursuant to this Article may be made
on the basis of aesthetic considerations only, and the Reviewer shall not bear any responsibility
for ensuring the structural integrity or soundness of approved construction or modifications, nor
for ensuring compliance with building codes and other governmental requirements, nor for
ensuring that all Dwellings are of comparable quality, value or size, of similar design, or
aesthetically pleasing or otherwise acceptable to neighboring property owners.
Declarant, the ARC, the Association, the Board, any committee, or member of any of the
foregoing shall not be held liable for soil conditions, drainage, or other general site work; any
defects in plans revised or approved hereunder; any loss or damage arising out of the action,
inaction, integrity, financial condition, or quality of work of any contractor or its subcontractors,
employees, or agents, whether or not Declarant has approved or featured such contractor as a
Builder in JASMINE SOUTH; or any injury, damages, or loss arising out of the manner or
quality or other circumstances of approved construction on or modifications to any Lot. In all
matters, the Association shall indemnify the Board, the ARC, and the members of each as
provided in Section 7.7.
4.7 Certificate of Compliance.
Any Owner may request that ARC issue a certificate of architectural compliance
certifying that there are no known violations of this Article or the Architectural Design
Standards. The Association, acting through the ARC, shall either grant or deny such request
within thirty (30) days after receipt of a written request and may charge a reasonable
administrative fee for issuing such certificates. Issuance of such a certificate shall preclude the
Association from taking enforcement action with respect to any condition as to which the
Association had notice as of the date of such certificate.
4.8 Enforcement.
(a) Once construction has been initiated on a Lot, the Owner thereof must complete
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such construction within one (1) year. If an Owner does not comply with such schedule, then
Declarant, and/or the Association shall have the right (but not the obligation) to complete such
construction on Owner’s behalf and at such Owner’s expense. In the event the Declarant or the
Association exercises the right provided in the immediately preceding sentence, the Declarant or
the Association (as the case may be) shall be entitled to collect from such Owner, in addition to a
reimbursement of all costs expended in the completion of construction of the Lot, an
administrative fee for such work, which fee shall be equal to twenty percent (20%) of the costs
incurred by such party in completing the work. Any and all of the foregoing costs and fees that
may be incurred by or payable to Declarant or the Association shall be a charge and continuing
lien upon such Lot until paid, and Declarant, the Board and/or the Association may bring an
action against such Owner, or foreclose the lien against the property in the same manner as
provided in North Carolina for the foreclosure of deeds of trust, or both, and in either event,
interest, cost and reasonable attorney’s fees of any such action shall be added to the amount
owed.
(b) Any structure or improvement placed or made in violation of this Article or the
Architectural Design Standards shall be deemed to be nonconforming. Upon written request
from the Board or the Declarant, Owners shall, at their own cost and expense, remove such
structure or improvement and restore the land to substantially the same condition as existed prior
to the nonconforming work. Should an Owner fail to remove and restore as required, then
Declarant, the Board and the Association shall each have the right to enter the property, remove
the violation, and restore the property to substantially the same condition as previously existed.
All costs, together with interest at a fixed rate equal to the lesser of the then current Wall Street
Journal Prime Rate as of the date of such entry, plus five percent (5%) or the maximum rate then
allowed by law, may be assessed against the Lot’s Owner and the benefitted Lot and collected as
a Specific Assessment pursuant to Section 8.5. In the event the Declarant, the Board and/or the
Association exercises any right provided hereto in this Section 4.8(b), then Declarant, the Board
and/or the Association (as the case may be) shall be entitled to collect from the relevant Owner,
in addition to a reimbursement of all costs expended in the removal of the violation and/or
restoration of the property, an administrative fee for such work, which fee shall be equal to
twenty percent (20%) of the costs incurred by such party in performing the work. Such fee shall
bear interest from date invoiced to the Lot’s Owner, at the same rate as such costs.
(c) Any contractor, subcontractor, agent, employee, or other invitee of an Owner who
fails to comply with the terms and provisions of this Article and the Architectural Design
Standards may be prohibited by the Board from entering and conducting any future activities
within JASMINE SOUTH. In such event, neither the Association, nor its officers or its directors
shall be held liable to any Person exercising the rights granted by this subsection.
(d) The Association shall have the authority to establish and levy fines for violation
of this Article and the Architectural Design Standards, including fines for continuing violations
thereof. The fine amounts may be deducted from any bond posted. If the fines are not paid, the
Association my levy a Specific Assessment in accordance with the provisions of Section 8.5.
(e) In addition to the foregoing, the Association shall have the authority and standing
to pursue all legal and equitable remedies available to enforce the provisions of this Article and
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the decisions of the ARC.
(f) The terms and conditions of this Section 4.8 shall not apply to Declarant or any
Affiliate of Declarant or to any property within JASMINE SOUTH owned by Declarant or any
Affiliate of Declarant.
Article V
Maintenance and Repair
5.1. Maintenance of Single-Family Dwellings
Each Owner shall maintain his or her Dwelling, excluding only the Townhome
Maintenance Elements, as defined herein, which include without limitation the exterior
maintenance, lawn maintenance and landscaping maintenance. Each Owner shall maintain any
improvements on the Owner’s Lot and all Common Areas for the maintenance of which the
Owner is responsible hereunder in a manner consistent with the Governing documents, the
Community-Wide Standard and all applicable covenants, unless such maintenance responsibility
is otherwise assumed by or assigned to the Association pursuant to this Declaration or any
Amended Declaration or other declaration of covenants applicable to such Dwelling, Lot and
Common Area.
There shall be no right of any Owner to remove trees, shrubs, or similar vegetation from
the Owner’s Lot or any Area of Common Responsibility or private or public right of way without
prior written approval pursuant to Article IV.
The Association, shall be responsible for maintaining and irrigating the lawn and
landscaping of the Lot and Common Area. The Owners shall not remove trees, shrubs, or
similar vegetation from the Lot or Common Area without prior approval pursuant to Article IV,
and such maintenance shall comply with any applicable permits or Restrictions and Rules.
5.2 Responsibility for Repair and Replacement.
Unless otherwise specifically provided in the Governing Documents or in other
instruments creating and assigning maintenance responsibility, responsibility for maintenance
shall include responsibility for repair and replacement, as necessary to maintain the property to a
level consisted with the community-wide standard.
By virtue of taking title to a Lot, each Owner covenants and agrees with all other Owners
and with the Association to carry property insurance for the full replacement cost of all insurable
improvements on his or her Lot, less a reasonable deductible, unless the Association carries such
insurance for all Lots as to the Dwellings constructed on the Lots. In the event that the
Association carries such insurance, each Owner covenants and agrees with all other Owners and
with the Association to carry property insurance for the full replacement cost of all insurable
interior improvements and all Dwelling contents, in the nature of a renters’ or condo owner’s
policy, less a reasonable deductible, such that there shall be no gap in coverage between the
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coverage provided by the Association and the coverage provided by the Owner’s policy. It shall
be the responsibility of each Owner to evaluate any insurance coverage provided by the
Association and to assure that the insurance coverage maintained by such Owner leaves no such
gap in coverage, and risk of such gap shall be assumed by each Owner by acceptance of a deed
to the Lot. Each Owner shall, promptly upon request from the Association, as may be made
from time to time, provide a certificate of insurance to document that such insurance is
maintained.
Each Owner further covenants and agrees that in the event of damage to or destruction of
structures on or comprising his or her Lot, the Owner shall cooperate fully with the restoration
by the Association, its insurers, contractors, and agents, of those exterior and structural
components of the dwelling which are insured under any policy of insurance maintained by the
Association, and the Owner shall proceed promptly to restore the interior areas and contents of
the Dwelling constructed on the Owner’s Lot to the extent not covered by any insurance
maintained by the Association. The Owner shall pay any costs not covered by insurance
proceeds of any insurance maintained by the Association.
Article VI
The Association and its Members
6.1. Function of Association.
The Association is the entity responsible for management, maintenance, operation and
control of the Area of Common Responsibility. The Association also is the primary entity
responsible for enforcement of the Governing Documents. The Association shall perform its
functions in accordance with the Governing Documents and North Carolina Law. The
Association shall be authorized to rebuild damaged or destroyed portions of structures containing
attached Dwelling units (if applicable) and Dwelling structures of detached Single-family
Dwellings (if applicable), when the individual Owner fails to do so.
6.2 Membership.
Every Owner shall be a Member of the Association. There shall be only one membership
per Lot. If a Lot is owned by more than one Person, all co-Owners shall share the privileges of
such membership, subject to reasonable Board regulation and the restrictions on voting set forth
in Section 6.3(c) and in the By-Laws, and all such co-Owners shall be jointly and severally
obligated to perform the responsibilities of Owners. The members rights of an Owner which is
not a natural person may be exercised by any officer, director, partner or trustee, or by the
individual designated from time to time by the Owner in a written instrument provided to the
Secretary of the Association.
Membership in the Association shall inure automatically to Owners upon acquisition of
the fee simple title to any one or more Lots. The date of Recordation in the Office of the Register
of Deeds of New Hanover County of the conveyance of the Lot in question shall govern the date
of ownership of each particular Lot. However, in the case of death, the transfer of ownership
21
shall occur on the date of death in the case of intestacy or the date of probate of the will in the
case of testacy. Until a decedent’s will is probated, the Association may rely on the presumption
that a deceased Owner died intestate.
6.3 Voting.
The Association shall have two classes of membership, Class “A” and Class “B.
(a) Class “A”. Class “A” Members shall be all Owners except the Class “B” Member,
if any. Class “A” Members shall have one equal vote for each Lot in which they hold the interest
required for membership under Section 6.2, except that there shall be only one vote per Lot. No
Class “A” vote shall be exercised for any property that is exempt from assessments under
Section 8.10. All Class “A” votes shall be cast as provided in Section 6.3(c).
(b) Class “B”. The sole Class “B” Member shall be the Declarant. The Declarant
may appoint and remove the members of the Board of Directors of the Association for so long as
Declarant or any Affiliate of Declarant owns any property subject to this Declaration or which
may become subject to this Declaration, notwithstanding the termination of Class “B”
Membership. Additional rights of the Class “B” Member are specified in the relevant sections of
the Governing Documents. After termination of the Class “B” Control Period, then for so long
as Declarant or any Affiliate of Declarant owns any property subject to this Declaration or which
may become subject to this Declaration, Declarant shall have a right to disapprove actions of the
Board and committees of the Board as provided in the By-Laws.
The Class “B” membership shall terminate upon the earlier of:
(i) two (2) years after expiration of the Class “B” Control Period pursuant to
Article I herein;
(ii) December 31, 2032; or
(iii) when, in its discretion, Declarant so determines and declares in an instrument
Recorded in the Office of the Register of Deeds for New Hanover County.
The Class “B” Member shall be entitled to three (3) votes for each Lot within JASMINE
SOUTH which is owned by Declarant. Upon termination of the Class “B” membership,
Declarant shall be a Class “A” Member entitled to Class “A” votes for each Lot which it owns
and shall continue to have other rights of the Declarant as provided herein.
(c) Exercise of Voting Rights. Except as otherwise specified in this Declaration or
the By-Laws, the vote for each Lot owned by a Class “A” Member shall be exercised by the
Voting Member representing Lot.
In any situation where a Member is entitled personally to exercise the vote for his or her
Lot, and there is more than one Owner of such Lot, or where the Member is an entity not a
natural person, the vote for such Lot shall be exercised as the co-Owners shall determine among
22
themselves or the entity shall determine and advise the Association’s Secretary in writing prior to
the vote being taken, identifying the Voting Member. Absent such notice, the Lot’s vote shall be
suspended if more than one Person seeks to exercise it. Such notice may identify a person
authorized to vote on behalf of such Lot and an alternate.
(d) Amendment of By-Laws. For so long as Declarant or any Affiliate of Declarant
owns any property subject to this Declaration or which may become subject to this Declaration,
Declarant may in the sole discretion of Declarant, amend the By-Laws of the Association in any
manner not inconsistent with the Planned Community Act.
(e) Management Service. The Association may contract from time to time with one
or more homeowners’ association management services providers and delegate to such providers
the day to day functions of the Board to the extent permitted by law. If such contracting occurs,
the charges of the provider shall be included in the budget of the Association and shall be a
Common Expense and shall not be considered included in Declarant’s initial development or
other original construction costs.
Article VII
Association Powers and Responsibilities
7.1. Acceptance and Control of Association Property.
(a) The Association may acquire, hold, lease (as lessor or lessee), operate, and
dispose of tangible and intangible personal property and real property (including, without
limitation, the Common Area), subject to the provisions of the Governing Documents. The
Association may enter into leases, licenses or operating agreements for portions of the Common
Area, for such consideration or no consideration as the Board deems appropriate, to permit use of
such portions of the Common Area by community organizations and by others, whether
nonprofit or for profit, for the provision of goods or services for the general benefit or
convenience of owners, occupants, and residents of JASMINE SOUTH.
(b) Declarant and its designees may convey to the Association personal property or
fee title, easement, leasehold or other property interests in any real property, improved or
unimproved, described in Exhibit “A-1” and Exhibit “A-2”. Such property, and any deed or
other instrument making such conveyance, shall be accepted by the Association, and shall be
included in the Common Area and thereafter shall be maintained by the Association at its
expense for the benefit of the Members. Upon Declarant’s written request, the Association shall
reconvey to Declarant any unimproved portions of the Common Area which Declarant
previously conveyed to the Association, without charge or cost to Declarant, to the extent
conveyed by Declarant in error or needed by Declarant to make minor adjustments in property
lines of Lots or with adjoining property owners.
(c) The Association shall be responsible for management, operation, and control of
the Common Area, subject to any covenants and restrictions set forth in the deed or other
instrument transferring such property to the Association. The Board may adopt such reasonable
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rules regulating use of the Common Area as it deems appropriate. The Association shall accept
transfer of the Stormwater Management Permit when transfer may lawfully be made to the
Association and shall thereafter act as the permittee.
7.2. Maintenance of Area of Common Responsibility.
The Association shall maintain, in accordance with the Community-Wide Standard, the
Area of Common Responsibility, which shall include, but need not be limited to:
(a) all portions of and structures situated on the Common Area;
(b) landscaping within public or private rights-of-way within or abutting JASMINE
SOUTH (to the extent not maintained by governmental authorities, or made the responsibility of
a Lot owner as provided herein); thus the Association shall maintain the private road shown on
the Plat as Sweet Jasmine Run (Private Road), curb and gutters, sidewalks, and any landscaping
within the right of way thereof or the right of way of any dedicated but not accepted areas of
public streets and roads until such time as dedication thereof and maintenance thereof have been
accepted by the State of North Carolina, New Hanover County, or any municipality with
authority to accept dedication. Dedication of the private road shown on the Plat as Sweet
Jasmine Run (Private Road) as a public right of way is not contemplated.
(c) such portions of any additional property included within the Area of Common
Responsibility as may be dedicated by this Declaration, any Recorded Amended Declaration,
Amendment to Declaration or Supplemental Declaration, Recorded amendment or revision to the
Plat, or any Recorded contract or agreement for maintenance thereof entered into by the
Declarant or the Association;
(d) all drainage easements, drainage or stormwater pipes, and all ponds, streams,
and/or wetlands located within JASMINE SOUTH which serve as part of the stormwater
drainage system including improvements and equipment installed therein or used in connection
therewith; and
(e) any property and facilities which Declarant owns and makes available, on a
temporary or permanent basis, for the primary use and enjoyment of the Association and its
Members. Such property and facilities shall be identified by written notice from Declarant to the
Association and will remain part of the Area of Common Responsibility maintained by the
Association until such time as Declarant revokes such privilege of use and enjoyment by written
notice to the Association.
(f) All rights of way including but not limited to private roads and any dedicated but
not accepted areas of public streets and roads.
The Association may maintain other property it does not own, including, without
limitation, property dedicated to the public, if the Board determines that such maintenance is
necessary or desirable to maintain the Community-Wide Standard.
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The Association shall not be liable for any damage or injury occurring on or arising out
of the condition of property it does not own except to the extent that is has been negligent in the
performance of its maintenance responsibilities.
The Association shall maintain the facilities and equipment within the Area of Common
Responsibility in continuous operation, except for any periods necessary, as determined in the
Board’s sole discretion, to perform required maintenance or repairs, unless Members
representing seventy-five (75%) percent of the Class “A” votes in the Association and the Class
“B” Member, if any, agree in writing to discontinue such operation, or unless not permitted by
law.
The Area of Common Responsibility shall not be reduced except with Declarant’s prior
written approval as long as Declarant or any Affiliate of Declarant owns any property described
in Exhibit “A-1” and Exhibit “A-2”.
The Association shall provide for liability insurance, any taxes, and maintenance of all
grounds and facilities, to the extent required by Section 5.8.3 (C) the New Hanover County
Unified Development Ordinance.
The costs associated with maintenance, repair, and replacement of the Area of Common
Responsibility shall be a Common Expense; provided, the Association may seek reimbursement
for the owner(s) of, or other Persons responsible for, certain portions of the Area of Common
Responsibility pursuant to this Declaration, or other Recorded covenants, or agreements with the
owner(s) thereof.
7.3. Stormwater Operation, Repair, and Maintenance, and Assignment to Association.
(a) Declarant shall be entitled to assign all water, sewer, land use, stormwater system and
utility permits, agreements and easements between Declarant and any governmental agency or
department or public or private utility company to the Association, including but not limited to
the Stormwater Management Permit, in which case the Association shall be required to assume
and accept assignment of same. After such an assignment, the Association shall be responsible
for and assume all duties, obligations, and rights and privileges of the Declarant under such
permits, agreements and easements, including all maintenance responsibility. Subject to and
pursuant to the provisions of NCGS §143-214.7(c2), Declarant shall have the right to transfer the
stormwater management permit(s) to the Association and the State of North Carolina shall allow
such transfer so long as: (a) the common areas related to the operation and maintenance of the
stormwater management system have been conveyed to the Association; (b) Declarant has
conveyed at least fifty percent (50%) of the Lots to Owners other than Declarant; and (c) the
stormwater management system is in substantial compliance with the stormwater permit(s).
Therefore, the Association and each of its Members agree that at any time after the Declarant (i)
has notified the Association of its intent to transfer the stormwater permit(s); (ii) has delivered to
the Association a certificate from an engineer licensed in the State of North Carolina, dated no
more than forty-five (45) days before the date of the request, that all stormwater retention ponds,
swales and related facilities are constructed in substantial compliance and accordance with the
plans and specifications therefor; and (iii) is not prohibited under NCGS §143-214.7(c2) from
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transferring the stormwater permit(s) to the Association, then the Association will cause its
officers, without the necessity for a vote or approval of Lot Owners, and within ten (10) days
after being requested to do so, to sign any and all documents required by the State of North
Carolina for the stormwater permit(s) to be transferred to the Association, and will accept a deed
conveying such facilities to the Association (if not already deeded and accepted). If the
Association fails to cause the documents required by this paragraph to be signed by its officers or
to accept a deed conveying such facilities, the Declarant shall be entitled to specific performance
in the courts of North Carolina requiring that the Association’s officers sign all documents
necessary for the stormwater permit(s) to be transferred to the Association and accept a deed
conveying such facilities to the Association. Failure of the Association's officers to sign as
provided herein shall not relieve the Association of its obligations to operate and maintain the
stormwater facilities covered by the stormwater permit(s). The Declarant, during the Class “B”
Control Period, and thereafter the Board, shall have the right to appoint the Stormwater Agent’s
successor(s).
(b) The Association, at its sole cost and expense, is responsible for the operation and
maintenance of all stormwater retention ponds and related facilities for JASMINE SOUTH,
excepting only any damage to stormwater facilities caused by the Declarant’s development
activities. Such operation and maintenance shall include, but not be limited to, compliance with
all of the terms and obtaining any renewals of the stormwater permit(s). The Association shall
indemnify and hold harmless the Declarant from any obligations and costs under the storm water
permit(s) for operation and maintenance of the storm water retention pond(s) and related
facilities. Declarant shall, at its sole cost and expense, be responsible for repairing any damage
to stormwater facilities caused by the Declarant’s development activities. The Declarant shall
not be responsible for damages to stormwater retention ponds and related facilities caused by any
other cause whatsoever, including but not limited to construction of residences or other activities
by Owners, their agents and contractors, acts of God, or the negligence or willful acts of others.
Lot Owners shall be responsible for damages to such stormwater facilities caused by
construction of buildings or other activities upon the Owner's Lot or by the negligence or willful
acts of the Owner or the Owner’s family members, members of the Owner’s household, or the
Owner’s guests, contractors, agents, or invitees. Each Owner shall, within thirty (30) days after
receipt of notice of damage to stormwater facilities for which the Owner is responsible, repair the
damage at the Owner's sole cost and expense to return them to the state required by the
stormwater permit and the stormwater plans and specifications for JASMINE SOUTH. If the
Lot Owner fails to do so within said thirty (30) day period, the Association shall perform the
work and the cost of the work shall be a Specific Assessment levied in accordance with Section
8.5(b).
(c) All Lots are subject to the State of North Carolina rules and regulations concerning
storm water runoff as these rules and regulations may be amended from time to time. Without
limiting the foregoing, Declarant or its designee, reserves the right to impose additional
restrictions upon the Property as and to the extent required by the terms of any storm water
permit applicable to JASMINE SOUTH or any portion thereof issued by the State of North
Carolina. Such additional restrictions may be imposed by Declarant by the recording of an
Amended Declaration, Amendment to Declaration or Supplemental Declaration, and no joinder
or consent of the Association or any other owner or person shall be required for such Amended
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Declaration, Amendment to Declaration or Supplemental Declaration.
(d) The following deed restrictions and restrictive covenants in this Section shall apply to
that property described in Exhibits “A-1” or “A-2” attached to this Declaration:
i. The following covenants are intended to ensure ongoing compliance with State
Stormwater Management Permit Number SW8 211203, as issued May 31, 2022
(the “Stormwater Management Permit”), by the Division of Energy, Mineral and
Land Resources (the "Division") under the Stormwater Management Regulations
including 15A NCAC 02H.1 000, effective January 1, 2017.
ii. The State of North Carolina is made a beneficiary of these covenants to the extent
necessary to maintain compliance with the Stormwater Management Permit.
iii. These covenants are to run with the land and be binding on all persons and parties
claiming under them.
iv. The covenants pertaining to stormwater may not be altered or rescinded without
the express written consent of the Division.
v. Alteration of the drainage as shown on the approved plans may not take place
without the concurrence of the Division.
vi. The maximum built-upon area (BUA) per lot is 1,900 square feet This allotted
amount includes any BUA constructed within the lot property boundaries, and
that portion of the right-of-way between the front lot line and the edge of the
pavement not shown on the approved plans. BUA has the same meaning as G.S.
§ 143-214.7, as amended.
vii. The maximum allowable BUA shall not be exceeded on any lot until the permit is
modified to ensure compliance with the stormwater rules, permit, and the
approved plans and specifications.
viii. All runoff from the BUA on the Lot must drain into the permitted system. This
may be accomplished via grading, a stormwater collection system and/or a
vegetated conveyance.
ix. A 50-foot wide vegetative setback must be provided and maintained adjacent to
all surface waters in accordance with15A NCAC 02H.1003(4) and the approved
plans.
x. Any individual or entity found to be in noncompliance with the provisions of a
stormwater management permit or the requirements of the stormwater rules is
subject to enforcement procedures as set forth in NCGS 143, Article 21.
(e) Built-upon area in excess of the permitted amount will require a permit modification
at Lot Owner’s expense.
(f) Lot Owners shall comply with all provisions of the Stormwater Management Permit
and all requirements of Stormwater Rules, and any individual or entity found to be in
noncompliance with the provisions of a stormwater management permit or the requirements of
the Stormwater Rules is subject to enforcement procedures as set forth in NCGS Chapter 143,
Article 21, and regulations issued thereunder, and shall be responsible for costs incurred by the
Declarant or the Association as a result of their actions causing non-compliance.
(g) Declarant reserves the right, in its sole discretion, as Dwellings (homes) are
constructed, to recalculate and re-designate maximum built-upon areas as set forth in above,
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provided such recalculations and re-designations are in accordance with stormwater permits
applicable to JASMINE SOUTH. In addition, if any property, as constructed as of the issuance
of a Certificate of Occupancy for a home constructed thereon, does not use all of its allocated
built-upon area, Declarant shall be deemed to have reclaimed such excess allotment or unused
capacity and shall have the right and option to reallocate that excess built-upon area to remaining
properties in its sole discretion. In such event, Declarant shall notify the Division, or other
applicable permitting authority, of the changes and shall record an Amended Declaration,
Amendment to Declaration or Supplemental Declaration reflecting the same, and no joinder or
consent of the Association or any other owner or person shall be required on such Amended
Declaration, Amendment to Declaration or Supplemental Declaration. In the event that the
Association is the permit holder at the time of any recapture and reallocation by the Declarant,
the Association shall be obligated to join with Declarant and cooperate with Declarant in
obtaining any necessary modifications to the Permit from the Division, or other applicable
permitting authority.
(h) Declarant reserves the right to impose additional restrictions upon the Property as and
to the extent required by the terms of the Stormwater Management Permit applicable to
JASMINE SOUTH or any portion thereof issued by the Division. Such additional restrictions
may be imposed by Declarant by the recording of an Amended Declaration, Amendment to
Declaration, or a Supplemental Declaration, and no joinder or consent of the Association or any
other owner or person shall be required for such Amended Declaration, Amendment to
Declaration or Supplemental Declaration.
(i) No party shall apply for or obtain any stormwater management permit applicable to
any portion of JASMINE SOUTH without the prior written consent of Declarant (which may be
granted or withheld in Declarant’s sole and absolute discretion). Except in the specific event of
Declarant’s consent (if applicable) in accordance with the foregoing sentence, it is the intent of
Declarant and this Declaration that all such permits are to be in the name of Declarant until such
time as Declarant elects to assign them to the Association as provided herein.
(j) in the event of any change of jurisdiction such that the Division, shall cease to be the
applicable permitting authority for stormwater permitting for JASMINE SOUTH, the provisions
of this Section 7.3 shall be construed to substitute the then-applicable permitting authority for the
Division.
7.4. Insurance.
The Association shall maintain all insurance coverage which it is required by law
(including without limitation, the North Carolina Community Act and the New Hanover County
Unified Development Ordinance) to provide.
7.5. Compliance and Enforcement.
(a) Every Owner and occupant of a Lot shall comply with the Governing Documents.
The Board may impose sanctions for violation of the Governing Documents, provided that, as
and to the extent required by law or the By-Laws, the Owner or occupant shall be entitled to
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notice and a hearing in connection with such sanction. Such sanctions may include, without
limitation:
(i) imposing reasonable charges for the late payment of assessments, which
charges shall constitute a lien upon the violator’s Lot, as provided in Section 8.9;
(ii) imposing reasonable monetary fines for other violations of the Governing
Documents, which shall constitute a lien upon the violator’s Lot, as provided in Section 8.9.
Except as may be permitted by the Governing Documents and by law, no such fine shall exceed
One Hundred Dollars ($100.00) per violation; provided, however, if such violation is not
remedied within five (5) days after the decision to levy the fine, then, beginning on the sixth (6 th)
day after the decision to levy the fine, additional fines of One Hundred Dollars ($100.00) per day
may be levied by the Association, without further hearing, for each day that the violation
continues. The provisions of this subsection “(ii).” shall only be amended in manner consistent
with North Carolina General Statutes § 47F-3-107.1, as amended, or successor statute. In the
event that any occupant, guest, or invitee of a Lot violates the Governing Documents and a fine
is imposed as provided therein, the Association shall first seek to assess such fine against the
violator; provided, however, if the fine is not paid by the violator within the time period set by
the Board, the Owner shall pay the fine upon notice from the Board;
(iii) suspending an Owner’s right to vote;
(iv) suspending any services or privileges provided by the Association (except
for rights to access a Lot), including but not limited to the suspension of a Person’s right to use
any recreational facilities within the Common Area, for reasonable periods for violations of the
Declaration, By-Laws, and Restrictions and Rules;
(v) suspending any services or privileges (as described in the immediately
preceding subsection) provided by the Association to an Owner or the Owner’s Lot during any
period that assessments or other amounts due and owing to the Association remain unpaid for a
period of thirty (30) days or longer;
(vi) requiring an Owner, at its own expense, to remove any structure or
improvement on such Owner’s Lot in violation of the Governing Documents and to restore the
Lot to its previous condition and, upon failure of the Owner to do so, the Board or its designee
shall have the right but not the obligation to enter the property, remove the violation and restore
the property to substantially the same condition as previously existed and any such action shall
not be deemed a trespass;
(vii) levying Specific Assessments to cover costs incurred by the Association to
bring a Lot into compliance with the Governing Documents;
(viii) filing liens with the New Hanover County Clerk of Superior Court and/or
the New Hanover County Register of Deeds for nonpayment of assessments or fees; and
(ix) filing notices of violations with the New Hanover County Clerk of
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Superior Court and/or the New Hanover County Register of Deeds providing record notice of
any violation of the Governing Documents.
In addition, the Board may take the following enforcement procedures to ensure
compliance with the Governing Documents without the necessity of compliance with the
procedures set forth in the By-Laws:
(i) to the extent permitted by law, exercising self-help in any emergency
situation (specifically including, but not limited to, the towing of vehicles that are in violation of
parking rules and regulations); or
(ii) bringing suit at law or in equity to enjoin any violation or to recover
monetary damages or both.
(iii) although a technical violation may exist or may have occurred, if it is not
of such a material nature as to be objectionable to a reasonable person or to justify expending the
Association’s resources then to elect not to pursue the removal of the violation and/or the
restoration of the property to substantially the same condition that existed prior to the violation.
Such a decision shall not be construed a waiver of the Association’s right to enforce such
provision at a later time under other circumstances or preclude the Association from enforcing
any other covenant, restriction, or rule.
(c) The Association, by contract or other agreement, may enforce applicable county
ordinances and request New Hanover County or any municipality having jurisdiction to enforce
ordinances within JASMINE SOUTH for the benefit of the Association and its Members.
7.6. Implied Rights; Board Authority.
The Association may exercise any right or privilege given to it expressly by the
Governing Documents, or reasonably implied from or reasonably necessary to effectuate any
such right or privilege. All rights and powers of the Association may be exercised by the Board
without a vote of the membership except where applicable law or the Governing Documents
specifically require a vote of the membership.
The Board may institute, defend, settle, or intervene on behalf of the Association in
mediation, binding or non-binding arbitration, litigation, or administrative proceedings in matters
pertaining to the Area of Common Responsibility, enforcement of the Governing Documents, or
any other civil claim or action. However, the Governing Documents shall not be construed as
creating any independent legal duty to institute litigation on behalf of or in the name of the
Association or its Members.
In exercising the rights and powers of the Association, making decisions on behalf of the
Association, and conducting the Association’s affairs, Board members shall be subject to, and
their actions shall be judged in accordance with, the standards set forth in the By-Laws. For so
long as Declarant or any Affiliate of Declarant owns any property subject to this Declaration or
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which may become subject to this Declaration, no amendment to the By-Laws may be made by
the Board or the Members without the written consent and approval of the Declarant.
7.7. Indemnification of Officers, Directors, and Others.
Subject to North Carolina law, the Association shall indemnify every officer, director,
and committee member against all damages and expenses, including counsel fees, reasonably
incurred in connection with any action, suit, or other proceeding (including settlement of any suit
or proceeding, if approved by the then Board of Directors) to which he or she may be a party by
reason of being or having been an officer, director, or committee member, except that such
obligation to indemnify shall be limited to those actions for which liability is limited under the
Articles of Incorporation and North Carolina law.
The officers, directors, and committee members shall not be liable for any mistake of
judgment, negligent or otherwise, except for their own individual willful misfeasance,
misconduct, or bad faith. The officers and directors shall have no personal liability with respect
to any contract or other commitment made or action taken in good faith on behalf of the
Association (except to the extent that such officers or directors may also be Members of the
Association).
The Association shall indemnify and forever hold each such officer, director and
committee member harmless from any and all liability to others on account of any such contract,
commitment or action. This right to indemnification shall not be exclusive of any other rights to
which any present or former officer, director, or committee member may be entitled. The
Association shall, as a Common Expense, maintain adequate general liability and officers’ and
directors’ liability insurance to fund this obligation, if such insurance is reasonably available.
7.8. Safety and Security.
Each Owner and occupant of a Lot, and their respective guests and invitees, shall be
responsible for their own personal safety and the security of their property in JASMINE
SOUTH. The Association may, but shall not be obligated to, maintain or support certain
activities within JASMINE SOUTH designated to enhance the level of safety or security which
each person provides for himself or herself and his or her property. Neither the Association nor
Declarant shall in any way be considered insurers or guarantors of safety or security within
JASMINE SOUTH, nor shall either be held liable for any loss or damage by reason of failure to
provide adequate security or ineffectiveness of security measures undertaken.
NO REPRESENTATION OF WARRANTY IS MADE THAT ANY SYSTEMS OR
MEASURES, INCLUDING ANY MECHANISM OR SYSTEM FOR LIMITING ACCESS
TO JASMINE SOUTH, CANNOT BE COMPROMISED OR CIRCUMVENTED, NOR
THAT ANY SUCH SYSTEMS OR SECURITY MEASURES UNDERTAKEN WILL IN
ALL CASES PREVENT LOSS OR PROVIDE THE DETECTION OR PROTECTION
FOR WHICH THE SYSTEM IS DESIGNED OR INTENDED. EACH OWNER
ACKNOWLEDGES AND UNDERSTANDS THAT THE ASSOCIATION, ITS BOARD
AND COMMITTEES, AND DECLARANT ARE NOT INSURERS OR GUARANTORS
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OF SECURITY OR SAFETY AND THAT EACH PERSON WITHIN JASMINE SOUTH
ASSUMES ALL RISKS OF PERSONAL INJURY AND LOSS OR DAMAGE TO
PROPERTY, INCLUDING LOTS AND THE CONTENTS OF LOTS, RESULTING
FORM ACTS OF THIRD PARTIES. EACH OWNER SHALL BE RESPONSIBLE FOR
INFORMING ITS TENANTS AND ALL OCCUPANTS OF ITS LOT OF THE
FOREGOING.
7.9. Intentionally deleted.
7.10. Provision of Services.
The Association may provide, or provide for, services and facilities for the Members and
their Lots, and shall be authorized to enter into and terminate contracts or agreements with other
entities to provide such services and facilities. The Board may charge use or service fees for any
such services and facilities provided at the option of an Owner, or may include the costs thereof
in the Association’s budget as a Common Expense and assess it as part of the Base Assessment if
provided to all Lots. By way of example, such services and facilities might include landscape
maintenance, pest control service, cable television service, security, caretaker, transportation,
utilities, and similar services and facilities.
Nothing in this Section shall be construed as a representation by Declarant or the
Association as to what, if any, services shall be provided. In addition, the Board shall be
permitted to modify or cancel existing contracts for services in its discretion, unless the provision
of such services is otherwise required by the Governing Documents. Non-use of services
provided to all Owners of Lots as a Common Expense shall not exempt any Owner from the
obligation to pay assessments for such services.
7.11. Other Regulatory Provisions.
Provision for the establishment of the association or similar entity shall be
made before any lot in the development is sold or any building occupied, as required by the New
Hanover County Unified Development Ordinance, including Section 6.3.4 (A) thereof.
Membership in the Association shall be mandatory for each initial purchaser of a Lot and
each successive purchaser of a Lot, as required by the New Hanover County Unified
Development Ordinance, including Section 5.8.3 (B) and 6.3.4 (A) thereof, and by the Planned
Community Act, and by this Declaration.
The Association shall be responsible for the liability insurance, local taxes and
the maintenance of the Common Areas and Areas of Common Responsibility, as required by the
New Hanover County Unified Development Ordinance, including Section 6.3.4 (A) thereof.
Any sums levied by the Association that remain unpaid shall become a lien upon the lot
owner’s property, as required by, and to the extent required by the New Hanover County Unified
Development Ordinance, including Section 5.8.3 (D) and Section 6.3.4. (A) thereof.
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The Association shall, before all or any portion of the property held by the Association
shall be disposed of (conveyed to any other party), or in the event that the Association is
dissolved, first be offer to New Hanover County the passive and active recreation and open space
areas as required by, and to the extent required by the New Hanover County Unified
Development Ordinance, including Section 6.3.4 (A)(5) thereof.
The use of the passive and active recreation or open space and all private improvements
to the Common Area shall be available to each Owner and resident of JASMINE SOUTH, to the
extent required by the New Hanover County Unified Development Ordinance, including Section
6.3.4 (A)(6) thereof, subject to reasonable regulation by the Association uniformly applied to all
Owners and residents not inconsistent therewith the New Hanover County Unified Development
Ordinance, including Section 6.3.4 (A)(7) thereof.
This Declaration has been submitted for review by the County Attorney and recorded
prior to the recording of the final plat for JASMINE SOUTH, and reference to the deed book and
page is provided on the initial Recorded Plat, in compliance with the New Hanover County
Unified Development Ordinance, including Section 6.3.4 (A)(7) thereof.
The Association shall be responsible for continuing upkeep and proper maintenance of all
private infrastructure facilities and common areas within JASMINE SOUTH to the extent
required by the New Hanover County Unified Development Ordinance, including Section 6.3.4
(B) thereof.
The Association shall comply with all requirements of the New Hanover County Unified
Development Ordinance with regard to maintenance and improvements to Common Areas and
Areas of Common Responsibility, including requirements relating to buffer strips, conservation
area, if any, conservation space, if any, and applicable performance controls, if any.
No traffic calming devices shall be installed on any private roads or streets or on any
public rights of way without first complying with the requirements of the New Hanover County
Unified Development Ordinance, including Section 6.2.2 (A)(7).
Article VIII
Association Finances
8.1. Budgeting and Allocating Common Expenses; Base Assessments.
Until a Base Assessment amount is established as provided in this Section 8.1, the Base
Assessment rate shall be $780.00 per year and shall be paid at the rate of $65.00 per month for
each Lot, subject to the provisions of Article VIII of this Declaration.
At least thirty (30) days before the beginning of each fiscal year, the Board shall prepare
a budget of the estimated Common Expenses for the coming year, including any contributions to
be made to a reserve fund pursuant to Section 8.3. The budget shall also reflect the sources and
estimated amounts of funds to cover such expenses, which may include any surplus to be applied
33
from prior years, and any income expected from sources other than assessments against the Lots,
as authorized in Section 8.7.
The Association is hereby authorized to levy Base Assessments equally against all Lots
subject to assessment under Section 8.7 to fund the Common Expenses. In determining the Base
Assessment rate per Lot, the Board may consider any assessment income expected to be
generated from any additional Lots reasonably anticipated becoming subject to assessment
during the fiscal year.
Declarant may, but shall not be obligated to, reduce the Base Assessment for any fiscal
year by payment by Declarant of a subsidy in addition to any amounts paid by Declarant under
Section 8.8(b), which may be either a contribution, an advance against future assessments due
from Declarant, or a loan, in Declarant’s discretion. Any such subsidy shall be disclosed as a
line item in the income portion of the budget. Payment of such subsidy in any year shall not
obligate Declarant to continue payment of such subsidy in future years, unless otherwise
provided in a written agreement between the Association and Declarant.
The Board shall send a summary of the final budget, together with a notice of the amount
of the Base Assessment to be levied pursuant to such budget, to each Owner within thirty (30)
days after the Board adopts such budget. With such summary, the Board shall provide to each
Owner a written notice of the meeting of the Owners at which the ratification of the budget will
be considered. Notwithstanding any provisions to the contrary in the Governing Documents,
there shall be no requirement that a quorum be present at the meeting described herein; and the
notice of said meeting shall include a statement that the budget may be ratified at such meeting
without a quorum. The meeting of the Owners to consider ratification of the budget shall be held
not less than ten (10) nor more than sixty (60) days after mailing of the summary and notice
referenced in this paragraph. The budget shall automatically be deemed ratified and become
effective unless disapproved at such meeting by Members representing at least seventy-five
(75%) percent of the total Class “A” votes in the Association and by the Class “B” Member, if
such exists.
If any proposed budget is disapproved or the Board fails for any reason to determine the
budget for any year, then the budget most recently in effect shall continue in effect until a new
budget is determined.
The Board may revise the Budget and adjust the Base Assessment from time to time
during the year, subject to the notice requirements and the right of the Members to disapprove
the revised budget as set forth above.
8.2. Intentionally deleted.
8.3. Special Assessments.
In addition to other authorized assessments, the Association may levy Special
Assessments to cover unbudgeted expenses or expenses in excess of those budgeted. Any such
Special Assessment shall be levied against the entire membership. The Board may establish the
34
amount of the Special Assessment if it is One Hundred Dollars ($100.00) or less in any
assessment year for each Member. Except as otherwise specifically provided herein, any Special
Assessment shall require the affirmative vote or written consent of Members representing more
than fifty (50%) percent of the total votes allocated to Lots which will be subject to such Special
Assessment, and the affirmative vote or written consent of the Class “B” Member, if such exists.
Special Assessments shall be payable in such manner and at such times as determined by the
Board and may be payable in installments extending beyond the fiscal year in which the Special
Assessment is approved.
8.4 Intentionally deleted.
8.5. Specific Assessments.
The Association shall have the power to levy Specific Assessments against a particular
Lot as follows:
(a) to cover the costs, including overhead and administrative costs, of providing
services to Lots upon request of an Owner pursuant to any menu of special services which may
be offered by the Association (which might include the items identified in Section 7.10). Specific
Assessments for special services may be levied in advance of the provision of the requested
service; and
(b) to cover costs incurred in bringing the Lot into compliance with the Governing
Documents, or costs incurred as a consequence of the conduct of the Owner or occupants of the
Lot, their agents, contractors, employees, licensees, invitees, or guests; provided that, to the
extent required by law or the By-Laws, the Board shall give the Lot Owner prior notice and an
opportunity for a hearing before levying any Specific Assessment under this subsection.
(c) to cover costs including overhead and administrative costs and reserves incurred
for maintenance, repair and replacement of private roads and any dedicated but not accepted
areas of public streets and roads, signs, mail boxes, fences and berms which are constructed for
the benefit of certain specified Lots, as shall be more specifically set forth in a Amended
Declaration, Amendment to Declaration or Supplemental Declaration.
8.6. Service Assessments.
The Association shall have the power to levy Service Assessments against a particular
Lot or Lots constituting less than all Lots within JASMINE SOUTH to cover the costs, including
overhead and administrative costs, of providing specialized maintenance and/or landscaping
services to such Lots and the occupants thereof. Such assessments may be levied in advance of
the provision of the requested benefit, item or service as a deposit against charges to be incurred
by the Owner. Notwithstanding the foregoing to the contrary, the fact that the Association levies
a Service Assessment shall not be deemed to impose any obligation upon the Association to (i)
monitor the quality of work or services being provided, (ii) assume any responsibility for the
quality of work or services provided, (iii) ensure the structural integrity or soundness of any
construction or modifications provided or (iv) ensure compliance with building codes and other
35
governmental requirements relating to the work or services provided.
8.7. Authority to Assess Owners; Time of Payment; Grace Period for Builders.
(a) Declarant hereby establishes, and the Association is hereby authorized to levy,
assessments as provided for in this Article and elsewhere in the Governing Documents. The
obligation to pay assessments shall commence as to each Lot on the first day of the month
following: (a) the month in which the Lot is made subject to the Declaration; or (b) the month in
which the Board first determines a budget and levies assessments pursuant to this Article,
whichever is later. The first annual Base Assessment, if any, levied on each Lot shall be adjusted
according to the number of months remaining in the fiscal year at the time assessments
commence on the Lot.
(b) Assessments shall be paid in such manner and on such dates as the Board may
establish. The Board may require advance payment of assessments at closing of the transfer of
title to a Lot and impose special requirements for Owners with a history of delinquent payments.
If the Board so elects, assessments may be paid in two or more installments. Unless the Board
otherwise provides, the Base Assessment shall be due and payable in advance on the first day of
each fiscal year. If any Owner is delinquent in paying any assessments or other charges levied
on his or her Lot, the Board may require the outstanding balance on all assessments to be paid in
full immediately.
(c) Notwithstanding anything to the contrary in this Article VIII, any Builder who
purchases property subject to this Declaration directly from the Declarant shall not be required to
pay any Base Assessments or Special Assessments relative to such property acquired from
Declarant for a period beginning on the date such property is acquired from Declarant (each, an
“Acquisition Date”) and ending on the date that is two hundred forty (240) days after the
Acquisition Date (the “Grace Period”); provided, however, in the event any portion(s) of such
property are subsequently conveyed by Builder to any other party not a Builder prior to the 240 th
day after the Acquisition Date, then the grace period described in this Section 8.7(c) shall
automatically and immediately terminate as to any portion(s) of the property conveyed by the
Builder as of the date of such conveyance, and the grantee of such conveyance shall thenceforth
be subject to full assessment under this Article VIII. Conveyance of a Lot by one Builder to
another Builder shall not result in extension of or an additional Grace Period and shall only
permit the grantee Builder to have the benefit of the then-remaining Grace Period. It is initially
contemplated that Herrington Classic Homes, LLC, will be the sole and exclusive Builder and
that there will be no other Builders, but Declarant may approve other Builders in its sole
discretion. Herrington Classic Homes, LLC, is an affiliated entity under common ownership
with the Declarant.
8.8. Obligation for Assessments.
(a) Personal Obligation. Each Owner, by accepting a deed is deemed to covenant and
agree to pay all assessments authorized in the Governing Documents. All assessments, together
with interest (computed from its due date at a rate of 8% per annum or such higher rate as the
Board may establish, subject to the limitations of North Carolina law), late charges as determined
36
by Board resolution (subject to the limitation of North Carolina law), costs, and reasonable
attorneys’ fees, shall be the personal obligation of each Owner and a lien upon each Lot until
paid in full. Upon a transfer of title to a Lot, the personal obligation for delinquent Assessments
shall not pass to the Owner’s successor in title unless expressly assumed.
Failure of the Board to fix assessment amounts or rates or to deliver or mail to each
Owner an assessment notice shall not be deemed a waiver, modification, or a release of any
Owner from the obligation to pay assessments. In such event, each Owner shall continue to pay
Base Assessments on the same basis as was in effect during the last year for which an assessment
was made, if any, until a new assessment is levied, at which time the Association may
retroactively assess any shortfalls in collections.
No Owner may exempt himself or herself from liability for assessments by non-use of
Common Area, abandonment of his or her Lot, or any other means. The obligation to pay
assessments is a separate and independent covenant on the part of each Owner. No diminution
or abatement of assessments or set-off shall be claimed or allowed for any alleged failure of the
Association or Board to take some action or perform some function required of it, or for
inconvenience or discomfort arising from the making of repairs or improvements, or from any
other action it takes.
Upon written request, the Association shall furnish to any Owner liable for any type of
assessment a certificate in writing signed by an Association officer setting forth whether such
assessment has been paid. Such certificate shall be conclusive evidence of payment. The
Association may require the advance payment of a reasonable processing fee for the issuance of
such certificate.
(b) Declarant’s Option to Fund Budget Deficits. During the Class “B” Control
Period, Declarant may satisfy its obligation for assessments on Lots which it owns either by: (i)
paying such assessments in the same manner as any other Owner; (ii) paying the difference
between the amount of assessments levied on all other Lots subject to assessment and the amount
of actual expenditures by the Association during the fiscal year; or (iii) paying one-half of the
assessments for an unimproved Lot for all Lots which are platted and Recorded but which have
not yet been sold to an Owner other than Declarant or a Builder. Unless Declarant otherwise
notifies the Board in writing at least forty-five (45) days before the beginning of each fiscal year,
Declarant shall be deemed to have elected to continue paying on the same basis as during the
immediately preceding fiscal year.
Regardless of Declarant’s election, Declarant’s obligations hereunder may be satisfied in
the form of cash or by “in kind” contributions of services or materials, or by a combination of
these. After termination of the Class “B” Control Period, Declarant shall pay assessments on its
unsold Lots in the same manner as any other Owner.
8.9. Lien for Assessments.
(a) The Association shall have a lien against each Lot including those owned by
Declarant to secure payment of delinquent assessments, as well as interest, late charges (subject
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to the limitations of North Carolina law), and costs of collection (including attorneys’ fees).
Such lien shall be superior to all other liens except (i) lien and encumbrances (specifically
including, but not limited to, a Recorded Mortgage on the Lot made in good faith and for value)
Recorded before the docketing of the claim of liens in the office of the New Hanover County
Clerk of Superior Court, and (ii) liens for real estate taxes and other governmental assessments
and charges against the Lot which applicable law would require to be superior. This subsection
does not affect the priority of mechanics’ or materialmen’s liens. Subject to applicable law and
the terms and conditions of this Declaration, such lien, when delinquent, may be enforced by
suit, judgment, and judicial or non-judicial foreclosure.
(b) Any assessment levied against a Lot remaining unpaid for a period of thirty (30)
days or longer shall constitute a lien on that Lot when a claim of lien is filed of record in the
office of the Clerk of Superior Court of New Hanover County. To the extent permitted by law,
fees, charges, late charges, and other charges imposed pursuant to this Declaration or North
Carolina law are enforceable as assessments under this Article.
(c) The Association may foreclose the claim of lien in like manner as a mortgage on
real estate under power of sale under Article 2A of Chapter 45 of the General Statutes; provided,
however:
(i) The Association may not foreclose an assessment lien under Article 2A of
Chapter 45 of the General Statutes if the debt securing the lien consists solely of fines imposed
by the Association, interest on unpaid fines, or attorneys’ fees incurred by the Association solely
associated with fines imposed by the Association (provided that the Association shall be entitled
to enforce such lien by judicial foreclosure as provided in Article 29A of Chapter 1 of the
General Statutes); and
(ii) The Association shall not levy, charge, or attempt to collect a service,
collection, consulting, or administration fee from any Owner unless the fee is expressly allowed
in this Declaration. Any lien securing a debt consisting solely of these fees may only be
enforced by judicial foreclosure as provided in Article 29A of Chapter 1 of the General Statutes.
(d) A claim of lien by the Association shall set forth the name and address of the
Association, the name of the record owner of the Lot at the time the claim of lien is filed, a
description of the Lot, and the amount of the lien claimed.
(e) The Association may bid for the Lot at the foreclosure sale and acquire, hold,
lease, mortgage, and convey the Lot. While a Lot is owned by the Association following
foreclosure: (i) no right to vote shall be exercised on its behalf, (ii) no assessment shall be levied
on it; and (iii) each other Lot shall be charged, in addition to its usual assessment, its pro rata
share of the assessment that would have been charged such Lot had it not been acquired by the
Association. The Association may sue for unpaid assessments and other charges authorized
hereunder without foreclosing or waiving the lien securing the same.
(f) Sale or transfer of any Lot shall not affect the assessment lien or relieve such Lot
from the lien for any subsequent assessments. However, where the holder of a first Mortgage or
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first deed of trust of record, or other purchaser of a Lot obtains title to the Lot as a result of
foreclosure of a first Mortgage or first deed of trust, such purchaser and its heirs, successors, and
assigns, shall not be personally liable for the assessments against such Lot which became due
prior to the acquisition of title to such Lot by such purchaser. Such unpaid assessments shall be
deemed to be Common Expenses collectible from all the Lot Owners including such purchaser,
its heirs, successors, and assigns.
8.10. Exempt Property.
The following property shall be exempt from payment of Base Assessments and Special
Assessments:
(a) All Common Area and such portions of the property owned by Declarant as are
included in the Area of Common Responsibility;
(b) Any property dedicated to and accepted by any governmental authority or public
utility;
(c) Any property held by a conservation trust or similar nonprofit entity as a
conservation easement, except to the extent that any such easement lies within the boundaries of
a Lot which is subject to assessment hereunder (in which case the Lot shall not be exempted
from assessment);
(d) intentionally deleted.
(e) Any property designated by Declarant for use as a sales office or model home
(provided that Declarant shall be entitled to terminate any such sales office or model home
exemption in the event such property is no longer used for such purposes).
In addition, Declarant and/or the Association shall have the right, but not the obligation,
to grant exemptions to certain persons qualifying for tax-exempt status under Section 501(c) of
the Internal Revenue Code so long as such Persons own property subject to this Declaration for
purposes listed in Section 501(c).
8.11. Capitalization of Association.
Upon acquisition of record title to a Lot by the first Owner thereof other than Declarant
or a Builder, a contribution shall be made by or on behalf of the purchaser to the working capital
of the Association in an amount equal to seven hundred fifty and no/dollars ($750.00) per Lot.
This amount shall be in addition to, not in lieu of, the annual Base Assessment and shall not be
considered an advance payment of such assessment. This amount shall be deposited into the
purchase and sales escrow and disbursed therefrom to the Association for use in covering
operating expenses and other expenses incurred by the Association pursuant to this Declaration
and the By-Laws.
8.12. Community Enhancement Fee.
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(a) Authority. The Board shall have the authority, on behalf of the Association, to
establish and collect a transfer fee from the transferring Owner upon each transfer of title to a
Lot in JASMINE SOUTH, which fee shall be payable to the Association or its management
services provider at the closing of the transfer and shall be secured by the Association’s lien for
assessments under Section 8.9. Owner shall notify the Association’s Secretary of a pending title
transfer at least seven days prior to the transfer. Such notice shall include the name of the buyer,
the date of title transfer, and such other information as the Board may reasonably require.
(b) Purpose. All transfer fees which the Association collects shall be deposited into a
segregated account used for such purposes as the Board deems beneficial to the general good and
welfare of JASMINE SOUTH, which the Governing Documents do not otherwise require to be
addressed by the Association’s general operating budget. By way of example and not limitation,
such transfer fees might be used to assist the Association or one or more tax-exempt entities in
funding:
(i) preservation and maintenance of natural areas, wildlife preserves, or
similar conservation areas, and sponsorship of educational programs and activities which
contribute to the overall understanding, appreciation and preservation of the natural environment
at JASMINE SOUTH.
(ii) programs and activities which serve to promote a sense of community
within JASMINE SOUTH, such as recreational leagues, cultural programs, educational
programs, festivals and holiday celebrations and activities, a community computer network, and
recycling programs; and
(iii) social services, community outreach programs, and other charitable
causes.
(d) Exempt Transfers. Notwithstanding the above, no transfer fee shall be levied
upon transfer of title to a Lot:
(i) by or to Declarant;
(ii) by a Builder who held title solely for purposes of construction and resale;
(iii) by a co-owner to any Person who was a co-owner immediately prior to
such transfer;
(iv) to the Owner’s estate, surviving spouse or child upon the death of the
Owner;
(v) to any entity wholly owned by the grantor (provided, upon any subsequent
transfer of an ownership interest in such entity, the transfer fee shall become due); or
(vi) to an institutional lender pursuant to a Mortgage or upon foreclosure of a
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Mortgage.
8.13. Surplus Funds.
Notwithstanding the provisions of N.C.G.S. §47F-3-114, any surplus funds of the
Association remaining after payment of or provision for Common Expenses shall be applied to
reserves or other future expenses as the Board deems appropriate.
Article IX
Expansion of the Community
9.1. Additional Property.
Declarant shall not expand JASMINE SOUTH to add additional property for
development into additional Lots, but may in the sole discretion of Declarant acquire additional
adjacent property or any part of what is, as of the date of first Recording of this Declaration
adjacent property, in fee simple, or acquire easements in or over such adjacent property as
necessary to meet any unanticipated engineering requirements, including for drainage or utilities,
or as may be required by governmental authorities or permitting, if applicable, and may make
such additional property subject to this Declaration, provided such additional property shall, if
made subject to this Declaration, become Common Area. This Article IX shall not be construed
to require Declarant to acquire additional property or to make any additional property which may
be acquired by Declarant subject to this Declaration or to use any additional property which may
be acquired by Declarant for any purpose contemplated by this Article IX, if acquired. Declarant
may acquire other property in any location for development independently of the Community as
a separate development from JASMINE SOUTH, or for any other purpose, without obligation to
include such other property in JASMINE SOUTH.
Article X
Additional Rights Reserved to Declarant
10.1. Withdrawal of Property. Intentionally deleted.
10.2. Marketing and Sales Activities.
Declarant may construct and maintain upon portions of the Common Area such facilities
and activities as, in Declarant’s sole opinion may be reasonably required, convenient, or
incidental to the construction or sale of units, including, but not limited to, business offices,
signs, model units, and sales offices. Declarant shall have easements for access to and use of
such facilities at no charge.
10.3. Right to Develop.
Declarant and its employees, agents, and designees shall have a right of access and use
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and an easement over and upon all of the Common Area for the purpose of making, constructing
and installing such improvements to the Common Area as it deems appropriate in its sole
discretion.
10.4. Right to Approve Additional Covenants and Associations.
No Person shall Record any declaration of covenants, conditions and restrictions,
declaration of condominium, amendment thereto, or any similar instrument affecting any portion
of JASMINE SOUTH without Declarant’s review and written consent for so long as Declarant or
any Affiliate of Declarant owns any property subject to this Declaration or which may become
subject to this Declaration. Any attempted recordation without such consent in violation of this
Section of this Declaration shall result in such instrument being void and of no force and effect
unless subsequently approved by written consent signed and Recorded by Declarant.
10.5. Right to Approve Changes in JASMINE SOUTH Standards.
No amendment to or modification of any Restrictions and Rules or Architectural Design
Standards shall be effective without prior notice to and the written approval of Declarant for so
long as Declarant or any Affiliate of Declarant owns any property subject to this Declaration or
which may become subject to this Declaration.
10.6. Right to Transfer or Assign Declarant Rights.
Any or all of Declarant’s special rights and obligations set forth is this Declaration or the
By-Laws may be transferred in whole or in part to other Persons; provided, the transfer shall not
reduce an obligation nor enlarge a right beyond that which Declarant has under this Declaration
or the By-Laws. No such transfer or assignment shall be effective unless it is in a written
instrument Declarant signs and Records. The foregoing sentence shall not preclude Declarant
from permitting other Persons to exercise, on a one time or limited basis, any right reserved to
Declarant in this Declaration where Declarant does not intend to transfer such right in its
entirety, and in such case, it shall not be necessary to record any written assignment unless
necessary to evidence Declarant’s consent to such exercise.
10.7. Exclusive Rights to Use Name of Development.
No Person shall use the name “JASMINE SOUTH” or any derivative of such name or in
logo or depiction in any printed or promotional material without Declarant’s prior written
consent. However, Owners may use the name “JASMINE SOUTH” in printed or promotional
matter where such term is used solely to specify that particular property is located within
JASMINE SOUTH and the Association shall be entitled to use the words “JASMINE SOUTH”
in its name.
10.8. Easement to Inspect and Right to Correct.
Declarant reserves for itself and others it may designate the right to inspect, monitor, test,
redesign, and correct any structure, improvement, or condition which may exist on any portion of
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the property within JASMINE SOUTH, including Lots, and a perpetual nonexclusive easement
of access throughout JASMINE SOUTH upon reasonable notice to the Owner. However, entry
into a Dwelling shall be permitted without the consent of the Owner upon those occasions when
the Owner cannot be consulted, and an emergency condition exists. The person exercising this
easement shall promptly repair, at such person’s own expense, any damage resulting from such
exercise.
10.9. Right to Notice of Design or Construction Claims.
No Person shall retain an expert for the purpose of inspecting the design or construction
of any structures or improvements within JASMINE SOUTH in connection with or in
anticipation of any potential or pending claim, demand, or litigation involving such design or
construction unless Declarant and any Builder involved in the design or construction have been
first notified in writing and given an opportunity to meet with the owner of the property to
discuss the owner’s concerns and conduct their own inspection.
10.10. Termination of Right.
The rights contained in this Article shall not terminate until the earlier of December 31,
2032, or the date neither Declarant nor any Affiliate of Declarant owns any property subject to
this Declaration or which may become subject to this Declaration.
Article XI
Easements
11.1. Easements in Common Area.
Declarant grants to each Owner a nonexclusive right and easement of use, access, and
enjoyment in and to the Common Area, subject to:
(a) The Governing Documents and any other applicable covenants;
(b) Any restrictions or limitations contained in any deed conveying such property to
the Association;
(c) The Board’s right to:
(i) adopt rules regulating use and enjoyment of the Common Area, including
rules limiting the number of guests who may use the Common Area;
(ii) suspend an Owner’s right to use recreational facilities within the Common
Area (A) for any period during which any charge against such Owner’s Lot remains delinquent;
and (B) for a period not to exceed thirty (30) days for a single violation (or for a longer period in
the case of any continuing violation) of the Governing Documents (subject to any applicable
notice and hearing requirements specifically imposed by law or the By-Laws);
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(iii) dedicate or transfer all or any part of the Common Area, subject to such
approval requirements as may be set forth in this Declaration;
(iv) impose reasonable membership requirements and charge reasonable
admission or other use fees for the use of any recreational facility situated upon the Common
Area;
(v) mortgage, pledge, or hypothecate any or all of its real or personal property
as security for money borrowed or debts incurred subject to the approval requirements set forth
in Section 18.4; and
(vi) permit use of any and all private roads that may now or in the future be
located within JASMINE SOUTH by persons other than Owners, their families, lessees, and
quests in order to access adjacent or neighboring commercial property or any other adjacent or
neighboring property.
(d) The rights of certain Owners to the exclusive use of those portions of the
Common Area designated “Limited Common Areas,” as described in Article XII.
Any Owner may extend his or her right of use and enjoyment to the members of his or
her family, lessees, and social invitees, as applicable, subject to reasonable Board regulation. An
Owner who leases his or her Lot shall be deemed to have assigned all such rights to the lessee of
such Lot for the period of the lease.
11.2. Easements of Encroachment.
Declarant grants reciprocal appurtenant easements of encroachment, and for maintenance
and use of any permitted encroachment, between each Lot and any adjacent Common Area and
between adjacent Lots due to the unintentional placement or settling or shifting of the
improvements constructed, reconstructed, or altered thereon (in accordance with the terms of
these restrictions) to a distance of not more than three feet, as measured from any point on the
common boundary along a line perpendicular to such boundary. However, in no event shall an
easement for encroachment exist if such encroachment occurred due to willful and knowing
conduct on the part of, or with the knowledge and consent of, the Person claiming the benefit of
such easement.
11.3. Easements for Utilities, Etc.
(a) Installation and Maintenance. So long as Declarant or an Affiliate of Declarant
owns any property described in Exhibit “A-1” and Exhibit “A-2” Declarant reserves for itself,
and grants to the Association thereafter, and to all utility providers, perpetual nonexclusive
easements throughout JASMINE SOUTH (but not through a structure) to the extent reasonably
necessary for the purpose of:
(i) installing utilities and infrastructure to serve JASMINE SOUTH,
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including any additional property which is made a part of JASMINE SOUTH in the future,
and/or any adjacent or neighboring property as may be required by any utility public or private
utility company for interconnectivity, including cable and other systems for sending and
receiving data and/or other electronic signals, security and similar systems, over and under
private roads, any dedicated but not accepted areas of public streets and roads, any walkways,
pathways and trails, utility easements identified on the Plat or herein, stormwater and/or other
drainage systems, street lights, and signage on property which Declarant owns or within public
rights-of-way or easements reserved for such purpose on Recorded plats;
(ii) inspecting, maintaining, repairing, and replacing the utilities,
infrastructure, and other improvements described in Section 11.3(a)(i); and
(iii) access to read utility meters.
(b) Specific Easements. Declarant also reserves for itself the non-exclusive right and
power to grant and record such specific easements as may be necessary, in Declarant’s sole
discretion, in connection with the orderly development of any property described in Exhibit “A-
1” and Exhibit “A-2”. The Owner of any property to be burdened by any easement granted
pursuant to this subsection shall be given written notice in advance of the grant. The location of
the easement shall be subject to the written approval of the Owner of the burdened property,
which approval shall not unreasonably be withheld, delayed, or conditioned.
(c) Minimal Interference. All work associated with the exercise of the easements
described in subsections (a) and (b) of this Section shall be performed in such a manner as to
minimize the interference with the use and enjoyment of the property burdened by the easement.
Upon completion of the work, the Person exercising the easement shall restore the property, to
the extent reasonably possible, to its condition prior to the commencement of the work. The
exercise of these easements shall not extend to permitting entry into the structures on any Lot,
nor shall it unreasonably interfere with the use of any Lot and, except in an emergency, entry
onto any Lot shall be made only after reasonable notice to the Owner or occupant.
11.4. Easements to Serve Additional Property.
Declarant hereby reserves for itself and its duly authorized agents, successors, assigns,
and mortgagees, an easement over the Common Area for the purposes of enjoyment, use, access,
and development of the property described in Exhibit “A-1” an Exhibit “A-2” and any additional
property described in Article IX hereof, whether or not such property is expressly made subject
to this Declaration. This easement includes, but is not limited to, a right of ingress and egress
over the Common Area for construction of roads and for connecting and installing utilities on
such property.
Declarant agrees that it and its successors or assigns shall be responsible for any damage caused
to the Common Area as a result of their respective actions in connection with development of
such property. Declarant further agrees that if the easement is exercised for permanent access or
utility service to such property and such property or any portion thereof benefitting from such
easement is not made subject to this Declaration, Declarant and its heirs, successors or assigns
45
shall enter into a reasonable agreement with the Association, if Declarant or its successors or
assigns are the initial easement holder, or require the owner of such additional property, for itself
and its heirs, successors or assigns, to enter into a reasonable agreement with the Association as a
condition of granting the easement, if the Declarant or its successors or assigns are not the initial
easement holder, to share the cost of any maintenance that the Association provides for the
benefit of the easement holder. The shared maintenance costs may include maintenance of storm
water facilities and utilities as well as any private roads and any dedicated but not accepted areas
of public streets and roads providing access to the benefitted party, and any utility lines.
11.5. Easements for Maintenance, Emergency, and Enforcement.
Declarant grants to the Association, easements over JASMINE SOUTH as necessary to
enable the Association to fulfill its maintenance responsibilities under Section 7.2. The
Association shall also have the right, but not the obligation, to enter upon any Lot for emergency,
security, and safety reasons, to perform maintenance and to inspect for the purpose of ensuring
compliance with and enforce the Governing Documents. The Board and its duly authorized
agents and assignees and all emergency personnel in the performance of their duties may
exercise such right. Except in an emergency situation, entry shall only be during reasonable
hours and after notice to the Owner.
11.6. Easements for Lake and Pond Maintenance and Flood Water.
Declarant reserves for itself, the Association, and their successors, assigns, and designees,
the nonexclusive right and easement, but not the obligation, to enter upon bodies of water and
wetlands located within the Area of Common Responsibility to (a) install, operate, maintain, and
replace pumps to supply irrigation water to the Area of Common Responsibility or any other
property; (b) construct, maintain, and repair structures and equipment used for retaining water;
and (c) maintain such area in a manner consistent with the Community-Wide Standard.
Declarant, the Association, and their successors, assigns and designees shall have an access
easement over and across any of JASMINE SOUTH which abuts or contains bodies of water or
wetlands to the extent reasonably necessary to exercise their rights under this Section.
Declarant further reserves for itself, the Association, and their successors, assigns and
designees, a perpetual, nonexclusive right and easement of access and encroachment over the
Common Area and Lots (but not the dwellings thereon) adjacent to or within one-hundred (100)
feet of bodies of water and wetlands within JASMINE SOUTH in order to (a) temporarily flood
and back water upon and maintain water over such portions of JASMINE SOUTH; (b) alter in
any manner and generally maintain the bodies of water and wetlands within the Area of
Common Responsibility; and (c) maintain and landscape the slopes and banks pertaining to such
areas. All persons entitled to exercise these easements shall use reasonable care in and repair any
damage resulting from the intentional exercise of such easements. Nothing herein shall be
construed to make Declarant or any other Person liable for damage resulting from flooding due
to hurricanes, heavy rainfall, or other natural occurrences.
Declarant further reserves for itself, the Association, and their successors, assigns and
designees, a permanent, exclusive right and easement (a) to pump water from the ponds located
46
in the Area of Common Responsibility for the purpose of irrigating any portion of the same
and/or any other property, and (b) to drill, install, locate, maintain and use wells, pumping
stations, water towers, filtration basins and tanks and related water facilities and systems within
the Common Area and/or lands within the Area of Common Responsibility. The pumping or
other removal of any water from any lake, pond, lagoon or body of water wholly or partly within
the Area of Common Responsibility, for any purpose other than firefighting and as provided
herein, is prohibited without the express written permission of Declarant and/or the Association.
There is hereby reserved for the benefit of the Declarant, the Association, or any public
utility company or municipality which is providing sewer service to JASMINE SOUTH, their
affiliates, successors or assigns, a permanent easement and right to discharge waste water into
designated ponds within JASMINE SOUTH, so long as approved by the North Carolina Division
of Environmental Management.
11.8 Easement to Inspect and Right to Correct.
Declarant reserves for itself and others it may designate the right to inspect, monitor, test,
redesign, and correct any structure, improvement, or conditions which may exist on any portion
of the property within JASMINE SOUTH, including Lots, and a perpetual, nonexclusive
easement of access through JASMINE SOUTH to the extent reasonably necessary to exercise
such right. Except in an emergency, entry into a Lot shall be only after reasonable notice to the
Owner.
The person exercising this easement shall promptly repair, at such person’s own expense,
any damage resulting from such exercise.
11.9 Setback Easement.
Since the establishment of standard inflexible building setback lines in location of homes
on Lots tends to force construction of homes directly to the side of other homes with detrimental
effects on privacy, view, preservation of important trees and other vegetation, ecological and
related concerns, no specific setback line are established by this Declaration. In order to assure,
however, that the foregoing considerations are given maximum effect, the Declarant reserves the
right to either 1) establish setback lines for certain property within the property’s Architectural
Design Standards, or 2) select the precise site location of each house or other structure on each
Lot in its sole discretion and to arrange the same in such manner and for such reasons as the
Declarant deems sufficient, provided, however, the Declarant shall make such determination so
as to insure that the development of the Lots subject to this Declaration is consistent with the
provisions set forth herein. The placement of homes is meant to create a sense of spaciousness
and to avoid monotony. For such purposes it is the Declarant’s intent that setback lines may be
staggered where appropriate. In any event, no house shall be erected closer to the front Lot line
or nearer to any side Lot line than the minimum distances established by applicable
governmental ordinances.
In addition to the easements reserved and/or granted above and notwithstanding anything
to the contrary in the foregoing paragraph of Section 11.9, Declarant hereby further reserves for
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itself, the Association and their successors, assigns and designees a perpetual, nonexclusive right
and easement over any portions of any Lot, Common Area, or other property within JASMINE
SOUTH lying within ten (10) feet of the front and rear property lines of any Lot and straddling
each side lot line (5’ each side of the side lot line), including under elevated decks or porches
(but not through a home), and in all of the Common Area and Areas of Common Responsibility,
for the purpose of installing, inspecting, maintaining, operating, repairing and replacing utilities,
stormwater facilities, landscaping and buffer yards, retaining walls, fencing, etc., or any other
reasonable use related to the orderly development, maintenance and use of the property within
JASMINE SOUTH.
11.10 Easements Reserved to Declarant.
The following easements are reserved to the Declarant:
A. easements over all Lots and Common Area, including over all private streets, if
any, and including over all easements shown on the Plat, and including access easements,
drainage easements and utility easements over all Common Area, as necessary or convenient to
provide access, ingress and egress, for the installation of and the maintenance, repair or
replacement of, all utility, drainage, stormwater and other facilities, and to make improvements
to Lots and Common Area, and to any Additional Property; provided that such easements over
Lots shall terminate as to the area of a Lot on which the Dwelling is constructed, excluding
raised decks or porches, upon the construction of the foundation or slab.
B. an easement of unobstructed access over, on, upon, through and across each Lot
and the Limited Common Area, if any, located thereon or appurtenant thereto, if any, and at all
reasonable times to perform any maintenance and repair to the Limited Common Elements, if
any, required by this Declaration.
11.11. Other Rights and Easements.
The following additional rights and easements are reserved to Declarant for so long as
Declarant or any Affiliate of Declarant owns any property subject to this Declaration or which
may become subject to this Declaration, or which may be made subject to the Declaration in
accordance with Section 9.1, and without limitation as to duration are granted to the Association:
A. right to grant an easement to all police, fire protection, ambulance and all similar
persons, companies or agencies performing emergency services, to enter upon all Lots and
Common Elements in the performance of their duties.
B. in case of any emergency originating in or threatening any Lot or Common
Elements, regardless of whether any Lot Owner is present at the time of such emergency, the
Association or any other person authorized by it, shall have the immediate right to enter any Lot
for the purpose of remedying or abating the causes of such emergency and making any other
necessary repairs not performed by the Lot Owners.
C. An easement over each Lot for the purposes of providing Lot maintenance when
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an Owner fails to provide maintenance and upkeep in accordance with this Declaration.
11.12 Rights Included in All Easements.
All easements reserved to the Declarant or granted to the Association shall include the
right to cut any trees, bushes or shrubbery; the right to make any grading of the soil, or to take
any other similar action reasonably necessary to provide economical and safe utility installation
or drainage, and to maintain reasonable standards of health, safety and appearance; and the right
to locate wells, pumping stations, and tanks, provided that after the conveyance of a Lot to a
Class “A” Member, there shall first be discussion with request for the consent of the Owner of
the Lot, for the placement of any well, pumping station or tank, which permission shall not be
unreasonably withheld, delayed, or conditioned by the Owner of the Lot. No structures,
improvements, or plantings or other material shall be placed or permitted to remain upon such
easement areas or other activities undertaken thereon which may damage or interfere with the
installation or maintenance of utilities or other services, or which may retard, obstruct or reverse
the flow of water or which may damage or interfere with established slope ratios or create
erosion, or interfere with the maintenance, repair or replacement of utility, drainage, or
stormwater facilities. These easement areas (whether or not shown on the recorded plats for the
Planned Community), but not drainage, utility or stormwater facilities within such areas, shall be
maintained by the respective Owner except those for which a public authority or utility company
is responsible. Declarant or the Association my remove any structures, improvements, plantings
or other material placed within any easement by any Owner or by the Association, and shall not
be responsible for the replacement or restoration of same or the cost of replacement or
restoration of same. All easements and rights described herein are, except to the extent expressly
limited as to duration, perpetual easements appurtenant to and running with the land, and shall
inure to the benefit of and be binding on the Declarant and the Association, their successors and
assigns, and any Owner, purchaser, mortgagee and other person having an interest in the Planned
Community, or any part or portion thereof, regardless of whether or not reference is made in the
respective deeds of conveyance, or in any mortgage or trust deed or other evidence of obligation,
to the easements and rights described in this Declaration.
11.13 Termination of Portions of Certain Easements.
All easements over Lots reserved to the Declarant or granted to the Association or to
other Lot Owners herein shall terminate only as to the area of a Lot on which the Dwelling is
initially constructed on foundation or slab, in accordance with plans approved by the Review
Officer or ARC, excluding raised decks or porches, upon the construction of the foundation or
slab within such easement. This Section 11.13 shall not apply to raised decks or porches,
outbuildings, or other improvements than such Dwelling on foundation or slab.
Article XII
Limited Common Areas
12.1 Purpose.
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Subject to prior approval by the New Hanover County Planning Department, certain
portions of the Common Area may be designated as Limited Common Area and reserved for the
exclusive use or primary benefit of Owners and occupants of Lot(s) to which such Limited
Common Area may be allocated. By way of illustration and not limitation, Limited Common
Areas may include parking areas, entry features, recreational facilities, landscaped medians and
cul-de-sacs, and other portions of the Common Area. All costs associated with maintenance,
repair, replacement, and insurance of a Limited Common Area shall be allocated to the Lot(s) to
which the Limited Common Areas are allocated.
12.2 Designation.
During the Class “B” Control Period, such Limited Common Area may be designated by
Declarant in the deed conveying such area to the Association, or on a subdivision plat relating to
such Common Area or by Amended Declaration, Amendment to Declaration or Supplemental
Declaration, provided, however, any such assignment shall not preclude Declarant from later
assigning use of the same Limited Common Area to additional Lots.
Thereafter, a portion of the Common Area may be assigned as such Limited Common
Area and such Limited Common Area may be reassigned upon approval of the Board and the
vote of Members representing a majority of the total Class “A” votes in the Association. As long
as Declarant or any Affiliate of Declarant owns any property subject to this Declaration or which
may become subject to this Declaration, any such assignment or reassignment shall also require
Declarant’s written consent.
Article XIII
Party Walls and Other Shared Structures
13.1 General Rules of Law to Apply.
Any fence built as a part of the original construction on the Lots which serves and/or
separates any two adjoining Lots shall constitute a party wall structure. To the extent not
inconsistent with the provisions of this Section, the general rules of law regarding party walls
and liability for property damage to shared fences, driveways and similar shared structures due to
negligence or willful acts or omissions shall apply. Any dispute arising concerning a party
structure shall be handled in accordance with the provisions of Article 14.
13.2 Maintenance; Damage and Destruction.
The cost of reasonable repair and maintenance of a party wall structure shall be shared
equally by the Owners who make use or have right to make use of the structure.
If a party wall structure is destroyed or damaged by fire or other casualty, then to the
extent that such damage is not covered by insurance and repaired out of the proceeds of
insurance, any Owner who has used the structure or has right to use the structure may restore it.
If other Owners thereafter use the structure or have the right to use the structure, they shall
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contribute to the restoration cost in equal proportions. However, such contribution will not
prejudice the right to call for a larger contribution from the other users under any rule of law
regarding liability for negligent or willful acts or omissions.
The right of any Owner to contribution from any other Owner under this Section shall be
appurtenant to the land and shall pass to such Owner’s successors-in-title.
Article XIV
Resolution of Disputes
14.1. Agreement to Encourage Resolution of Disputes Without Litigation
(a) Declarant, the Association and its officers, directors and committee members, all
Persons subject to this Declaration, and any Person not otherwise subject to this Declaration who
agrees to submit to this Article (collectively, “Bound Parties”) agree that it is in the best interest
of all concerned to encourage the amicable resolution of disputes involving the Community
without the emotional and financial costs of litigation. Accordingly, each Bound Party agrees not
to file suit in any court with respect to a Claim described in subsection (b), unless and until it has
first submitted each Claim to the alternative dispute resolution procedures set forth in Section
14.2 in good faith effort to resolve such Claim.
(b) As used in this Article, the term “Claim” shall refer to any claim, grievance, or
dispute arising out of or relating to
(i) the interpretation, application, or enforcement of the Governing
Documents;
(ii) the rights, obligations, and duties of any Bound Party under the Governing
Documents; or
(iii) the design or construction of improvements within the Community, other
than matters of aesthetic judgment, which shall not be subject to review.
(iv) any suit in which any indispensable party is not a Bound Party; and
(v) any suit as to which any applicable statute of limitations would expire
within one hundred eighty (180) days of giving the Notice required by Section 14.2(a), unless the
party or parties against whom the Claim is made agree to toll the statutes of limitations as to such
Claim for such period as may reasonably be necessary to comply with this Article.
14.2 Dispute Resolution Procedures.
(a) Notice. The Bound Party asserting a Claim (“Claimant”) against another Bound
Party (“Respondent”) shall give written notice to each Respondent and to the Board stating
plainly and concisely:
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(i) the nature of the Claim, including the Persons involved and the
Respondent’s role in the Claim;
(ii) the legal basis of the Claim (i.e. the specific authority out of which the
Claim arises);
(iii) the Claimant’s proposed resolution or remedy; and
(iv) the Claimant’s desire to meet with the Respondent to discuss in good faith
ways to resolve the claim.
(b) Negotiation. The Claimant and Respondent shall make every reasonable effort to
meet in person and confer for the purpose of resolving the Claim by good faith negotiation. If
requested in writing, accompanied by a copy of the Notice, the Board may appoint a
representative to assist the parties in negotiating a resolution of the Claim.
(c) Mediation. If the parties have not resolved the Claim through negotiation within
thirty (30) days of the date of the notice described in Section 14.2(a) (or within such other period
as the parties may agree upon), the Claimant shall have thirty (30) additional days to submit the
Claim to mediation with an entity designated by the Association (if the Association is not a party
to the Claim) or to an independent agency providing dispute resolution services in the New
Hanover County area.
If the Claimant does not submit the Claim to mediation within such time, or does not
appear for the mediation when scheduled, the Claimant shall be deemed to have waived the
Claim, and the Respondent shall be relieved of any and all liability to the Claimant (but not to
third parties) on account of such Claim.
If the Parties do not settle the Claim within thirty (30) days after submission of the matter
to mediation, or within such time as determined reasonable by the mediator, the mediator shall
issue a notice of Termination of the mediation proceedings indicating that the parties are at an
impasse and the date that mediation was terminated. The Claimant shall thereafter be entitled to
file suit or to initiate administrative proceedings on the Claim, as appropriate.
Each Party shall bear its own costs of the mediation, including attorneys’ fees, and each
Party shall share equally all fees charged by the mediator.
14.3 Initiation of Litigation by Association.
In addition to compliance with the foregoing alternative dispute resolution procedures, if
applicable, the Association shall not initiate any judicial or administrative proceeding unless first
approved by a vote of Owners entitled to cast 75% of the total votes in the Association, except
that no such approval shall be required for actions or proceedings:
(a) initiated during the “Class “B” Control Period”;
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(b) initiated to enforce the provisions of this Declaration, including collection of
assessments and foreclosure of liens;
(c) initiated to challenge ad valorem taxation or condemnation proceedings;
(d) initiated against any contractor, vendor, or supplier of foods or services arising
out of a contract for services or supplies; or
(e) to defend claims filed against the Association or to assert counterclaims in
proceedings instituted against it.
This Section shall not be amended unless such amendment is approved by the same
percentage of votes necessary to institute proceedings.
Article XV
Mortgagee Provisions
15.1. Notices of Action.
An institutional holder, insurer, or guarantor of a first Mortgage which provides a written
request to the Association (such request to state the name and address of such holder, insurer,
and guarantor and the street address of the Lot to which its Mortgage relates, thereby becoming
an “Eligible Holder”), will be entitled to timely written notice of:
(a) Any condemnation loss or any casualty loss which affects a material portion of
JASMINE SOUTH or which affects any Lot on which there is a first Mortgage held, insured, or
guaranteed by such Eligible Holder;
(b) Any delinquency in the payment of assessments or charges owed by a Lot subject
to the Mortgage of such Eligible Holder, where such delinquency has continued for a period of
sixty (60) days, or any other violation of the Governing Documents relating to such Lot or the
Owner of occupant which is not cured within sixty (60) days;
(c) Any lapse, cancellation, or material modification of any insurance policy
maintained by the Association.
15.2. Special FHLMC Provision.
So long as required by the Federal Home Loan Mortgage Corporation, the following
provisions apply in addition to and not in lieu of the foregoing. Unless at least sixty-seven (67%)
percent of the first Mortgagees or Members representing at least sixty-seven (67%) percent of the
total Association vote to consent, the Association shall not:
(a) By act or omission seek to abandon, partition, subdivide, encumber, sell, or
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transfer all or any portion of the real property comprising the Common Area which the
Association owns, directly or indirectly (the granting of easements for utilities or other similar
purposes consistent with the intended use of the Common Area shall not be deemed a transfer
within the meaning of this subsection);
(b) Change the method of determining the obligations, assessments, dues, or other
charges which may be levied against an Owner of a Lot (a decision, including contracts, by the
Board or provisions of any declaration subsequently Recorded on any portion of JASMINE
SOUTH regarding assessments shall not be subject to this provision where such decision or
subsequent declaration is otherwise authorized by this Declaration);
(c) By act or omission change, waive, or abandon any scheme of regulations or
enforcement pertaining to architectural design, exterior appearance or maintenance of Lots and
the Common Area (the issuance and amendment of architectural standards, procedures, rules and
regulations, or use restrictions shall not constitute a change, waiver, or abandonment within the
meaning of this provision);
(d) Fail to maintain insurance, as required by this Declaration; or
(e) Use hazard insurance proceeds for any Common Area losses for other than the
repair, replacement, or reconstruction of such property.
First Mortgagees may, jointly or singly, pay taxes or other charges which are in default
and which may or have become a charge against the Common Area and may pay overdue
premiums on casualty insurance policies or secure new casualty insurance coverage upon the
lapse of an Association policy, and first Mortgagees making such payments shall be entitled to
immediate reimbursement from the Association.
15.3 Other Provisions for First Lien Holders.
To the extent not inconsistent with North Carolina law:
(a) Any restoration or repair of JASMINE SOUTH after a partial condemnation or
damage due to an insurable hazard shall be performed substantially in accordance with this
Declaration and the original plans and specifications unless the approval is obtained of the
Eligible Holders of the first Mortgages on Lots to which more than fifty (50%) percent of the
votes of Lots subject to Mortgages held by such Eligible Holders are allocated.
(b) Any election to terminate the Association after substantial destruction or a
substantial taking in condemnation shall require the approval of the Eligible Holders of first
Mortgages on Lots to which more than fifty (50%) percent of the votes of Lots subject to
Mortgages held by such Eligible Holders are allocated.
15.4. Amendment to Documents.
The following provisions do not apply to amendments to the Governing Documents or
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termination of the Association as a result of destruction, damage, or condemnation pursuant to
Section 15.3(a) and (b), or to the addition of land in accordance with Article IX.
(a) The consent of Members representing at least eighty (80%) percent of the Class
“A” votes and of Declarant, so long as the Declarant or any Affiliate of the Declarant owns any
land subject to this Declaration, and the approval of the Eligible Holders of first Mortgages on
Lots to which at least eighty (80%) percent of the votes of Lots subject a Mortgage appertain,
shall be required to terminate the Association.
15.5. No Priority.
No provision of this Declaration or the By-Laws gives or shall be construed as giving any
Owner or other party priority over any rights of the First Mortgagee of any Lot in the case of
distribution to such Owner of insurance proceeds or condemnation awards for losses to or a
taking of the Common Area.
15.6. Notice to Association.
Upon request, each Owner shall be obligated to furnish to the Association the name and
address of the holder of any Mortgage encumbering such Owner’s Lot.
15.7. Failure of Mortgagee to Respond.
Any Mortgagee who receives a written request from the Board to respond to or consent to
any action shall be deemed to have approved such action if the Association does not receive a
written response from the Mortgagee within thirty (30) days of the date of the Association’s
request, provided such request is delivered to the Mortgagee by certified or registered mail,
return receipt requested.
15.8. Construction of Article XV.
Nothing contained in this Article shall be construed to reduce the percentage vote that
must otherwise be obtained under this Declaration, the By-Laws, or North Carolina law for any
of the acts set out in this Article.
Article XVI
Changes in Ownership of Lots
Any Owner desiring to sell or otherwise transfer title to his or her Lot shall give the
Board at least seven days’ prior written notice of the name and address of the purchaser or
transferee, the date of such transfer of title, and such other information as the Board may
reasonably require. The transferor shall continue to be jointly and severally responsible with the
transferee for all obligations of the Lot Owner, including assessment obligations, until the date
upon which such notice is received by the Board, notwithstanding the transfer of title.
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Article XVII
Changes in Common Area
17.1. Condemnation.
If any part of the Common Area shall be taken (or conveyed in lieu of and under threat of
condemnation by the Board acting on the written direction of Members representing at least
sixty-seven (67%) percent of the total Class “A” votes in the Association and of Declarant, as
long as Declarant or any Affiliate of Declarant owns any property subject to the Declaration or
which may be made subject to the Declaration in accordance with Section 9.1) by any authority
having the power of condemnation or eminent domain, each Owner shall be entitled to written
notice of such taking or conveyance prior to disbursement of any condemnation award or
proceeds from such conveyance. Such award or proceeds shall be payable to the Association to
be disbursed as follows:
(a) If the taking or conveyance involves a portion of the Common Area on which
improvements have been constructed, the Association shall restore or replace such improvements
on the remaining land included in the Common Area to the extent available, unless it shall be
otherwise determined within sixty (60) days after such taking:
(i) by Declarant, for so long as Declarant or any Affiliate of Declarant owns any property
subject to this Declaration or which may become subject to this Declaration in accordance with
Section 9.1, or thereafter (ii) the Members representing at least seventy-five (75%) percent of the
total Class “A” vote of the Association, shall otherwise determine. Any such construction shall
be in accordance with plans approved by the Board; or
(b) If the taking or conveyance does not involve improvements on the Common Area,
or if a decision is made not to repair or restore, or if net funds remain after any such restoration
or replacement is complete, then such award or net funds shall be disbursed to the Association
and used for such purposes as the Board shall determine.
17.2. Partition.
Except as permitted in this Declaration, the Common Area shall remain undivided, and
no Person shall bring any action to partition any portion of the Common Area without the written
consent of all Owners and Mortgagees. This Section shall not prohibit the Board from acquiring
and disposing of tangible personal property nor from acquiring and disposing of real property
which may or may not be subject to this Declaration.
17.3. Transfer or Dedication of Common Area.
Subject to the applicable terms of the North Carolina Planned Community Act, the
Association may dedicate portions of the Common Area to the County of New Hanover, North
Carolina or to any other local, state, or federal governmental or quasi-governmental entity which
has authority to accept such dedication, subject to such approval as may be required by law or
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Section 17.4 herein.
17.4. Actions Requiring Owner Approval.
If either the U.S. Department of Housing and Urban Development or the U.S.
Department of Veterans Affairs insures or guarantees the Mortgage on any Lot, then the
following actions shall require the prior approval of the Members representing not less than two-
thirds of the total Class “A” votes in the Association and the consent of the Class “B” Member, if
such exists: merger, consolidation or dissolution of the Association; annexation of additional
property other than that described in Exhibit “A-1” and Exhibit “A-2”; and dedication,
conveyance or mortgaging of Common Area. Notwithstanding anything to the contrary in
Section 17.1 or this Section, the Association, acting through the Board, may grant easements
over the Common Area for installation and maintenance of utilities and drainage facilities and
for other purposes not inconsistent with the intended use of the Common Area, without the
approval of the membership.
Article XVIII
Amendment of Declaration
18.1. By Declarant.
In addition to specific amendment rights granted elsewhere in this Declaration, until
termination of the Class “B” Control Period, Declarant may unilaterally amend this Declaration
for any purpose. Thereafter, Declarant may unilaterally amend this Declaration if such
amendment is necessary (a) to bring any provision into compliance with any applicable
governmental statute, rule, regulation, or judicial determination; (b) to enable any reputable title
insurance company to issue title insurance coverage on the Lots; (c) to enable any institutional or
governmental lender, purchaser, insurer, or guarantor of mortgage loans, including, for example,
the Federal National Mortgage Association or Federal Home Loan Mortgage Corporation, to
make, purchase, insure, or guarantee mortgage loans on the Lots; or (d) to satisfy the
requirements of any local, state, or federal governmental agency. However, any such
amendment shall not adversely affect the title to any Lot unless the Owner shall consent in
writing.
In addition, so long as Declarant owns property described in Exhibit “A-1” and Exhibit
“A-2” for development as part of JASMINE SOUTH, it may unilaterally amend this Declaration
for any other purpose. However, any such amendment shall not adversely affect the title to any
Lot unless the Owner shall consent in writing.
18.2. By Members.
Except as otherwise specifically provided above and elsewhere in this Declaration, this
Declaration may be amended only by the affirmative vote or written consent, or any combination
thereof, of Members representing seventy-five (75%) percent of the total Class “A” votes in the
Association, including seventy-five (75%) percent of the Class “A” votes held by Members other
than Declarant, and Declarant’s consent, so long as Declarant or any Affiliate of Declarant owns
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any property subject to this Declaration or which may become subject to this Declaration in
accordance with Section 9.1. In addition, the approval requirements set forth in Article XV shall
be met if applicable.
After the neither the Declarant nor any Affiliate of Declarant owns any property subject to this
Declaration or which may become subject to this Declaration in accordance with Section 9.1, this
Declaration may be amended only by affirmative vote or written agreement signed by lot owners
of lots to which at least sixty-seven percent (67%) of the votes in the association are allocated, or
by the Declarant if necessary for the exercise of any development right.
Notwithstanding the above, the percentage of votes necessary to amend a specific clause
shall not be less than the prescribed percentage of affirmative votes required for action to be
taken under that clause.
18.3. Validity and Effective Date.
No amendment may remove, revoke, or modify any right or privilege of Declarant or the
Class “B” Member without the written consent of Declarant or the Class “B” Member,
respectively (or the assignee of such right or privilege).
If an Owner consents to any amendment to this Declaration or the By-Laws, it will be
conclusively presumed that such Owner has the authority to consent, and no contrary provision
in any Mortgage or contract between the Owner and a third party will affect the validity of such
amendment.
Every amendment to the declaration shall be Recorded in every county in which any
portion of the Planned Community is located, and shall become effective upon Recording, unless
a later effective date is specified in the amendment. Any procedural challenge to an amendment
must be made within six months of its Recordation or such amendment shall be presumed to
have been validly adopted. In no event shall a change of conditions or circumstances operate to
amend any provisions of this Declaration.
18.4. Exhibits.
Exhibit “A-1” and Exhibit “A-2” attached to this Declaration is incorporated by this
reference, and this Article governs the amendment of such exhibit. All other exhibits are
attached for informational purposes and may be amended from time to time as provided therein
or in the provisions of this Declaration which refer to and govern such exhibits.
Article IXX
Conservation
19.1 Identification.
Those areas defined herein at Article II as “Conservation Areas”, if any, shall be
maintained in perpetuity in their natural condition except as permitted by the Unified
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Development Ordinance of the County of New Hanover, North Carolina. Those areas defined
herein at Article II as “Conservation Setbacks”, if any, shall be maintained in perpetuity in
compliance with Unified Development Ordinance of the County of New Hanover, North
Carolina.
19.2 Prohibited Activities.
No person or entity shall perform within any “Conservation Areas” any activities
prohibited under Unified Development Ordinance of the County of New Hanover, North
Carolina.
No person or entity shall place any structures or impervious surfaces or perform any
activities or make any improvements within the “Conservation Setbacks” except in compliance
with or as permitted by the Unified Development Ordinance of the County of New Hanover,
North Carolina.
This covenant is to run with the land and shall be binding on the Declarant and all parties
claiming under it. This covenant cannot be amended without the express written consent of the
New Hanover County Planning Department.
Article XX
Miscellaneous
20.1. Severability.
Invalidation of any one of the covenants or restrictions in this Declaration by judgment or
any court, agency or legislative order shall in no way affect any other provision, covenants,
conditions or restrictions contained in this Declaration.
20.2. Notice by Electronic Means.
Any written notice required to be provided pursuant to the Governing Documents may be
provided in accordance with the provisions of the applicable Governing Document.
Alternatively, and to the extent permitted by North Carolina law, written notice may be provided
by electronic means, including by electronic mail over the Internet, to an electronic mailing
address designated in writing by the Member or other Person designated as a recipient of said
notice. Permitted notice given electronically shall be deemed to be delivered when dispatched,
unless an error message is reported back to the sending system.
20.3. Conflicts with the North Carolina Planned Community Act.
To the extent any provision of this Declaration is directly inconsistent with the terms of
the North Carolina Planned Community Act (N.C.G.S. §47F-1-101 et. Seq.) And such provision
of this Declaration cannot reasonably be reconciled with said North Carolina Planned
Community Act, the terms of the North Carolina Planned Community Act shall be controlling
with regard to such term.
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20.4 25’ Perimeter Setback. The area shown as 25’ Perimeter Setback which is not within a
Lot is Common Area. Declarant shall not be obligated to make any improvements to the 25’
Perimeter Setback other than to make an initial application of pine straw to the portion thereof
which is not included in a Lot or Lots. No Owner shall remove any regulated tree or vegetation
from the portion of any Lot within a 25’ Perimeter Setback, if applicable, except by permit
issued by New Hanover County, and the Association shall not remove any regulated tree or
vegetation from a 25’ Perimeter Setback, if applicable, except by permit issued by New Hanover
County. No Owner may fence any portion of the 25’ Perimeter Setback which is not included in
a Lot or take any action which prevents other Owners from exercise of access thereto as
Common Area. Fencing of any portion of the 25’ Perimeter Setback by an Owner shall only be
done to the extent this may be permitted under applicable New Hanover County Ordinances,
after application for and approval of a fence permit, and subject to any applicable height
limitations, materials restrictions, or other restrictions or requirements of local ordinances,
regarding which the Declarant makes no representation.
20.5. Declarant Discretion and No Obligation. The Declarant shall not be obligated to provide
any improvements to the Common Area or to any Lot or to provide further improvement or
maintenance to any improvement made to the Common Area, except as expressly provided
herein or on the Plat, or any applicable building code. Declarant may, in the sole discretion of
Declarant, make additional improvements to the Common Area or to any Lot owned by the
Declarant notwithstanding such improvements are not described or provided herein or on the
Plat, or not make such additional improvements. The making of any improvement to the
Common Area or to any Lot not provided herein or in the Plat shall not imply any obligation to
make the improvement in any particular manner or style, or with any degree of finish or
treatment, or to maintain the improvement after completion of the improvement. By way of
example and not limitation, were the Declarant to undertake to build a fence on Common Area
not described herein or on the Plat, building the fence would not imply a duty to build the fence
to any particular aesthetic design standard, or particular height, or to paint the fence, stain the
fence, or treat the fence with any substance, or to repair or maintain the fence in the future.
Upon the Declarant making an improvement to the Common Area, including but not limited to
any street, sidewalk, fence, such improvement shall become a part of the Common Area, and
responsibility for maintenance of the improvement or any further improvement or repair of the
improvement shall be the responsibility of the Association and not of the Declarant.
IN WITNESS WHEREOF, the undersigned Declarant has executed this Declaration the
date and year first written above.
RIVER BIRCH INVESTMENTS, LLC
a North Carolina limited liability company
By: ____________________________________
Mary J. Johnson, Manager
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STATE OF NORTH CAROLINA
COUNTY OF NEW HANOVER
I, ______________________________, a Notary Public for said County and State, do
hereby certify that Mary J. Johnson, in her capacity as Manager of RIVER BIRCH
INVESTMENTS, LLC, a North Carolina limited liability company, personally appeared before
me this day and acknowledged the due execution of the foregoing instrument on behalf of said
corporation acting in its capacity as Manager of said limited liability company.
Witness my hand and notarial seal this ____ day of February, 2021.
____________________________________
Notary Public
My Commission Expires:
____________________
(OFFICIAL SEAL)
EXHIBIT “A-1”
A certain tract or parcel of land lying and being in New Hanover County, North Carolina, and
being that land as described in deed book 6544 page 258, records of New Hanover County,
North Carolina and being more particularly described as follows:
BEING ALL of Lots 1, 2 and 3 of Fernando Estates Subdivision as shown on plat recorded in
Map Book 61, Page 222, New Hanover County Registry, and being more particularly described
as follows:
BEGINNING at a point in the southern line of the 36 foot tract of land conveyed to Henry
Martindale by Deed recorded in Book OO at Page 649 of the New Hanover County Registry;
said point being North 70 degrees 55 minutes West along said line 600.0 feet from its
intersection with the western line of N.C. Highway No. 132 (200 foot right-of-way), said
intersection point being South 5 degrees 10 minutes West along the western line of said highway
378.09 feet from its intersection with the southern line of Mohican Trail (60 foot right-of-way),
if same were extended westwardly, reference being made to the map of Tanglewood, Section 4,
as recorded in Map Book 7, at Page 66 of said registry; running thence from said beginning point
North 70 degrees 5 minutes West along said old Martindale line 1642.6 feet to an iron pipe in the
western line of the tract known as the “Martindale 1904 Patent”; thence North 31 degrees 51
minutes East along said patent line 146.0 feet to an iron pipe, the southwestern corner of the tract
conveyed to Carolina Lands, Inc. by Deed recorded in Book 638, Page 96 of the said registry;
thence South 70 degrees 55 minutes East along the southern line of the last-mentioned tract
1575.1 feet to a point that is North 70 degrees 55 minutes West along said line 600.0 feet from
its intersection with the western line of said highway; thence South 5 degrees 10 minutes West
and parallel with said highway 146.7 feet to the point of beginning; the same containing 5.26
acres and being the western portion of the tract conveyed to the trustees of First Original Free
Will Baptist Church of Wilmington by Deed recorded in Book 849 at Page 252 of the New
Hanover County Registry, and also being the western portion of the tract conveyed to Avgerinos
V. Saffo, et al, by Deed recorded in Book 806, Page 412 of said registry.
TOGETHER WITH an easement or right-of-way for ingress and egress, over and across a strip
of land thirty (30) feet in width, the northern line of same being an extension eastwardly of the
northern line of the above described tract, and said easement extending from the eastern line of
the above described tract eastwardly a distance of 600.0 feet to the western line of N.C. Highway
No. 132.
Being the same property as is shown as Lots 1, 2, and 3, Existing 30’ Access Easement on
“Minor Subdivision Plat of Fernando Estates Subdivision, RE: DB 1041/233,” by Joseph A
Romeo PLS #L-4937, recorded in Map Book 61 at Page 222 of the New Hanover County
Registry, and described in Deed recorded in Book 6293 at Page 1472 of the New Hanover
County Registry.
Being the same property as is shown on Final Plat JASMINE SOUTH, by Vernon Derek
Danford, NC PLS No. L-4528, of Danford & Associates Land Surveying, P.C. dated
______________, recorded in Map Book ____ at Page ______ of the New Hanover County
Registry
EXHIBIT “A-2”
[ATTACH COPY OF PLAT]
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EXHIBIT “B”
RESTRICTIONS AND RULES
The following restrictions shall apply to all of JASMINE SOUTH until such time as they
are amended, modified, repealed, or limited pursuant to Article III of the Declaration.
1. General. JASMINE SOUTH, is a planned development, which includes
residential lots and may include temporary commercial offices (without limitation, an
information center and/or sales office for any real estate broker retained by Declarant to assist in
the sale of property described in Exhibit “A-1” and Exhibit “A-2”, offices for any property
manager retained by the Association, offices for any Builders, or business offices for Declarant
or the Association) consistent with this Declaration and any Amended Declaration, Amendment
to Declaration or Supplemental Declaration.
2. Restricted Activities. The following activities are prohibited within JASMINE
SOUTH unless expressly authorized by, and then subject to such conditions as may by imposed
by, the Board of Directors:
(a) Parking of commercial vehicles or equipment, tractors, or recreational vehicles or
equipment, including but not limited to mobile homes, motor homes, recreational vehicles,
campers, motorcycles, mopeds, golf carts, boats and other watercraft, trailers, stored vehicles,
inoperable vehicles, or vehicles having more than four (4) tires on Common Area, including on
streets or parking spaces, or on Lots in places other than enclosed garages; provided however,
that during construction, construction vehicles, and during and after construction, service and
delivery vehicles, shall be exempt from this provision during daylight hours only for such period
of time as is reasonably necessary to perform construction or to provide service or to make a
delivery to a Lot or to the Common Area.
(b) Parking of passenger vehicles other than commercial vehicles, including non-
commercial automobiles, pickup trucks, passenger vans and sport utility vehicles not exceeding
seating for 9 persons, on Common Area or on any Lot other than in the garage or in the
driveway; provided however that parking of such non-commercial vehicles shall be permitted
only in approved driveways and garages, and no more than three such passenger vehicles shall be
parked in any driveway if outside of the garage and all vehicles parked in any driveway shall
only be parked in a manner such that that no portion of the vehicle, including the bumper, shall
be within any sidewalk (as defined by the extension of the lines of such sidewalk from beyond
the driveway through the driveway).
(c) Raising, breeding, or keeping animals, livestock, or poultry of any kind, except
that a reasonable number of dogs, cats, or other usual and common household pets may be
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permitted in a Lot. However, those pets which are permitted to roam free, or, in the sole
discretion of the Board, make objectionable noise, endanger the health or safety of, or constitute
a nuisance or inconvenience to the occupants of other Lots shall be removed upon the Board’s
request. If the pet owner fails to honor such request, the Board may have the pet removed. All
parties are also hereby notified that, in the event any dog kept or maintained on a Lot or within
JASMINE SOUTH barks excessively, continuously or in a manner that constitutes a nuisance,
the Board may require the Lot Owner to employ a collar or other device designated to reduce or
control such excessive barking (provided that such action shall in not event limit any other rights
or remedies for such situation that may be available to the board or to any other parties at law or
in equity). Dogs shall be kept on a leash or otherwise confined in a manner acceptable to the
Board, whenever outside the Dwelling. Pets shall be registered, licensed and inoculated as
required by law;
(d) Any activity which emits foul or obnoxious odors outside the Lot or creates noise
or other conditions which tend to disturb the peace or threaten the safety of the occupants of
other Lots;
(e) Any activity which violates local, state, or federal laws or regulations; however,
the Board shall have no obligation to take enforcement action in the event of a violation;
(f) Pursuit of hobbies or other activities that tend to cause an unclean, unhealthy, or
untidy condition to exist outside of enclosed structures on the Lot;
(g) Any noxious or offensive activity which in the reasonable determination of the
Board tends to cause embarrassment, discomfort, annoyance, or nuisance to persons using the
Common Area or to the occupants of other Lots;
(h) Outside burning of trash, leaves, debris, or other materials, except during the
normal course of constructing a Dwelling on a Lot;
(i) Use or discharge of any radio, loudspeaker, horn, whistle, bell, or other sound
device so as to be audible to occupants of other Lots, except alarm devises used exclusively for
security purposes;
(j) Use and discharge of firecrackers and other fireworks;
(k) Dumping grass clippings, leaves or other debris, petroleum products, fertilizers, or
other potentially hazardous or toxic substances in any drainage ditch, stream, pond, or lake, or
elsewhere within JASMINE SOUTH, except that fertilizers may be applied to landscaping on
Lots provided care is taken to minimize runoff, and Declarant and Builders may dump and bury
rocks and trees removed from a building site on such building site;
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(l) Accumulation of rubbish, trash, or garbage except between regular garbage pick-
ups and then only in approved containers;
(m) Obstruction or re-channeling drainage flows after location and installation of
drainage swales, storm sewers, or storm drains, except that Declarant and the Association shall
have such right; provided, the exercise of such right shall not materially diminish the value of or
unreasonably interfere with the use of any Lot without the Owner’s consent which consent shall
not be unreasonably withheld, delayed, or conditioned.
(n) Subdivision of a Lot into two or more Lots, or changing the boundary lines of any
Lot after a subdivision plat including such Lot has been approved and Recorded, except that
Declarant shall be permitted to subdivide or replat Lots which it owns;
(o) Unless otherwise approved by the Association or Declarant, no swimming,
boating, use of personal flotation devises, or other active use of lakes, ponds, streams, or other
bodies of water within JASMINE SOUTH, will be permitted. Water from lakes, ponds, and
streams within JASMINE SOUTH for purposes of irrigation and such other purposes as
Declarant shall deem desirable. The Association shall not be responsible for any loss, damage, or
injury to any person or property arising out of the authorized or unauthorized use of lakes, ponds,
streams, or other bodies of water within or adjacent to JASMINE SOUTH;
(p) Use of any Lot for operation of a timesharing, fraction-sharing, or similar
program whereby the right to exclusive use of the Lot rotates among participants in the program
on a fixed or floating time schedule over a period of years;
(q) Discharge of firearms; provided, the Board shall have no obligation to take action
to prevent or stop such discharge;
(r) On-site storage of gasoline, heating, or other fuels, except that a reasonable
amount of fuel may be stored on each Lot for emergency purposes and operation of lawn mowers
and similar tools or equipment, and the Association shall be permitted to store fuel for operation
and maintenance vehicles, generators, and similar equipment. This provision shall not apply to
any underground fuel tank authorized pursuant to Article IV;
(s) Any business, trade, garage sale, moving sale, rummage sale, or similar activity,
except that an Owner or occupant residing in a Lot may conduct business activities within the
Lot so long as (i) the existence or operation of the business activity is not apparent or detectable
by sight, sound, or smell from the outside of the Lot; (ii) the business activity conforms to all
zoning requirements for JASMINE SOUTH; (iii) the business activity does not involve door-to-
door solicitation of residents of JASMINE SOUTH; (iv) the business activity does not in the
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Board’s reasonable judgment, generate a level of vehicular or pedestrian traffic or a number of
vehicles being parked in JASMINE SOUTH which is noticeably greater than that which is
typical of Lots in which no business activity is being conducted; and (v) the business activity is
consistent with the residential character of JASMINE SOUTH and does not constitute a
nuisance, or a hazardous or offensive use, or threaten the security or safety of other residents of
JASMINE SOUTH, as may be determined in the Board’s sole discretion.
The terms “business” and “trade” as used in this provision, shall be construed to have
their ordinary, generally accepted meaning and shall include, without limitation, any occupation,
work or activity undertaken on an ongoing basis which involves the provision of goods or
services to persons other than the provider’s family and for which the provider receives a fee,
compensation, or other form of consideration, regardless of whether: (1) such activity is engaged
in full or part-time, (2) such activity is intended to or does generate a profit; or (3) a license is
required.
Leasing of a Lot shall not be considered a business or trade within the meaning of this
subsection. This subsection shall not apply to any activity conducted by Declarant or a Builder
approved by Declarant with respect to its development and sale of JASMINE SOUTH or its use
of any Lots which is owns within JASMINE SOUTH;
(t) Capturing, trapping, or killing of wildlife within JASMINE SOUTH, except
circumstances posing an imminent threat to the safety of persons using JASMINE SOUTH or by
licensed pest control companies.
(u) Any activities which materially disturb or destroy the vegetation, wildlife,
wetlands, or air quality within JASMINE SOUTH, or which use excessive amounts of water or
which result in unreasonable levels of sound or light pollution;
(v) Conversion of any garage to finished space for use as an apartment or other
integral part of the living area on any Lot without prior approval pursuant to Article IV;
(w) Operation of motorized vehicles on pathways or trails maintained by the
Association; and
(x) Any construction, erection, placement, or modification of anything, permanently
or temporarily, on the outside portions of the Lot, whether such portion is improved or
unimproved, except in strict compliance with the provisions of Article IV of the Declaration.
This shall include, without limitation, signs, basketball hoops, swing sets and similar sports and
play equipment, clotheslines, garbage cans; woodpiles; above-ground swimming pools, docks,
piers and similar structures, and hedges, walls, dog runs, animal pens, or fences of any kind;
satellite dishes and antennas, except that:
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(i) an antenna designated to receive direct broadcast satellite services,
including direct-to-home satellite services, that is one meter or less in
diameter;
(ii) an antenna designated to receive video programming services via
multipoint distribution services, including multichannel multipoint
distributions services, instructional television fixed services, and local
multipoint distribution services, that is one meter or less in diameter or
diagonal measurement; or
(iii) an antenna that is designated to receive television broadcast signals;
(collectively, “Permitted Antennas”) shall be permitted on Lots, subject to
such reasonable requirements as to location and screening as may be set
forth in the Architectural Design Standards, consistent with applicable
law, in order to minimize obtrusiveness as viewed from streets and
adjacent property. Declarant and/or the Association shall have the right,
without obligation, to erect an aerial, satellite dish, or other apparatus for a
master antenna, cable, or other communication system for the benefit of
all or a portion of JASMINE SOUTH, should any master system or
systems be utilized by the Association and require such exterior apparatus.
2. Prohibited Conditions. The following shall be prohibited at JASMINE SOUTH:
(a) Plants, animals, devices, or other things of any sort whose activities or existence in
any way is noxious, dangerous, unsightly, unpleasant, or of a nature as may diminish or destroy
the enjoyment of JASMINE SOUTH;
(b) Structures, equipment, or other items on the exterior portions of a Lot which have
become rusty, dilapidated, or otherwise fallen into disrepair; and
(c) Sprinkler or irrigation systems or wells of any type which draw upon water from
JASMINE SOUTH ponds, or other surface waters within JASMINE SOUTH, except that
Declarant and the Association shall have the right to draw water from such sources.
3. Leasing of Lots. “Leasing” for purpose of this Paragraph, is defined as regular,
exclusive occupancy of a Lot by any person, other than the Owner for which the Owner receives
any consideration or benefit, including, but not limited to, a fee, services, gratuity, or emolument.
All leases shall be in writing. The Board may require a minimum lease term of up to twelve (12)
months, but the initial minimum lease term is six (6) months. Proposed forms of lease shall be
submitted to the Board for review and approval or comment in advance of execution. Notice of
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any lease, together with such additional information as may be required by the Board, shall be
given to the Board by the Lot Owner within seven (7) days of execution of the Lease. The
Owner must make available to the lessee copies of the Declaration, By-Laws, and the
Restrictions and Rules. No rentals of individual rooms within a Lot will be permitted. Any lease
regardless of term must be for the entire Lot.
4. Garage Doors. Garage doors shall be kept closed at all times except as necessary
to enter and exit the garage.
5. No On-street Parking. No on-street parking is permitted.
6. Exclusive Trash, Garbage and Recycling Services. In the event that the
Declarant, during the during the “Class “B” Control Period”, or the Association, thereafter, shall
designate any trash or garbage hauler or any recycling services provider, any Lot Owner shall
remain free to transport his own trash, garbage, or recycling waste to the public or private facility
located outside of JASMINE SOUTH of the Lot Owner’s choice, but no Lot Owner shall engage
the services of any trash or garbage hauler or any recycling services provider other than that so
designated by the Declarant or the Association for collect or pick up within JASMINE SOUTH
for hauling or disposal of trash, garbage, or recycling waste. Lot Owners shall contract directly
with any trash or garbage hauler or any recycling services provider so designated by the
Declarant or the Association, for services on the same day of the week as may be established
between the Declarant or the Association with such trash or garbage hauler or recycling services
provider, such that such services shall be coordinated and limited to a single day of the week,
and so that such services shall not be included in Common Expenses. The Declarant designates
GFL Environmental (Waste Industries, LLC) as the initial trash or garbage hauler and recycling
services provider.