Covenants and Restrictions for Lake Manor Estates
DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS AND EASEMENTS FOR LAKE MANOR ESTATES
BACKGROUND
A. Declarant is the owner in fee simple of real property described in Exhibit "A," attached hereto (the "Committed Property"). Declarant has developed and is developing the Committed Property and is by this Declaration providing for the enhancement and protection of the value, attractiveness, and desirability of the development property lying within the Committed Property. The land use plan for the Committed Property contains (i) single-family residential lots (the "Residential Property"); (ii) roads; (iii) lighting and utility structures and easements; and (iv) Common Areas and appurtenant structures.
B. Declarant has caused the formation of the Lake Manor Estates Owners Association, Inc. (the "Association") for the purpose of accepting the delegation and assignment in this Declaration of certain powers and duties, including, but not limited to, its enforcement and the collection and disbursement of the assessments and disbursement of the assessments to cover Association expenses and obligations.
NOW, THEREFORE, in consideration of the premises which are the subject of this agreement and the benefit to be received by itself and all persons claiming by, through or under it, Declarant hereby: (i) establishes this Declaration ("Declaration" will include this Declaration and any amendment or addendum to it); (ii) declares that the Committed Property will be owned, held, used, conveyed, sold and occupied subject to this Declaration; (iii) declares that all covenants and restrictions referred to below will run with the title to all portions of the Committed Property; and (iv) declares that the easements described below will be perpetual in duration unless otherwise provided.
ARTICLE I
DEFINITIONS
1. "Articles" refers to the Articles of Incorporation of the Association, as may be amended from time to time.
2. "Association" refers to the Lake Manor Estates Owners Association, Inc., a Virginia not-for-profit corporation.
3. "Association Expenses" refers to the expenses for which Owners of Lots are liable to the Association as described and provided in the Lake Manor Estates Documents.
4. "Board" refers to the Board of Directors of the Association.
5. “Budget" refers to the annual budget for the Association as prepared and adopted by the Board and showing all income and expenditures as anticipated for a forthcoming fiscal year of the Association.
6. "By-Laws" refers to the by-laws of the Association, as amended from time to time.
7. "Committed Property" refers to the property described in Exhibit A.
8. "Common Areas" refers to those portions of Committed Property which are or become, pursuant to this Declaration and any amendment, streets, roads, walkways, trails, parks, recreational areas, open space, those portions of the lake within the boundaries of Lake Manor Estates subdivision, those portions of the lake dam within the boundaries of Lake Manor Estates subdivision, and any other areas designated as such on any recorded plat of subdivision for Lake Manor Estates.
9. "County" refers to the County of Bedford, State of Virginia.
10. "Lake Manor Estates Documents" refers to this Declaration, the Articles and By- Laws, together with all recorded amendments to it, as well as Rules and Regulations promulgated pursuant to it.
11. "Lot" refers to a residential lot as shown on a Plat.
12. "Owner" refers to the owner in fee simple to a Lot, but excludes Declarant during those times at which Declarant is owner of any Lot, and excludes those having an interest in a Lot merely as security for the performance of an obligation, in which event Owner refers to the Contract Purchaser.
13. "Plat" refers to that plat filed for record simultaneously with these Declarations, under which a portion of the Committed Property is subdivided into Lots or parcels.
14. "Residence" refers to a residential dwelling unit constructed, erected or located on a residential Lot that is designed and intended for use and occupancy as a residence by a single family.
15. "Residential Property" refers, collectively, to the Lots designated for residential use and all improvements to any Lot.
16. "Special Assessments" refers to any assessment other than the annual Assessment levied by the Declarant or by the Association on an Owner of a Lot.
ARTICLE II
LAKE MANOR ESTATES
A. Committed Property.
1. Declarant will develop the Committed Property as a residential community known as Lake Manor Estates in accordance with the County’s applicable zoning regulations. The Committed Property is subject to this Declaration.
2. The total number of residential dwelling Lots that could be constructed on the Committed Property is 69 (which is called the "Total Dwelling Lots'').
B. Committed Property; Uses; Property Rights. The Committed Property contains Residential Property and Common Areas as more particularly described here and in the Lake Manor Estates Documents.
1. The Residential Property is the aggregate of all of the Lots designated for residential use in the Committed Property, as shown on all Plats.
2. Every Owner of a Lot is hereby granted a nonexclusive right and easement of enjoyment in and to the Common Areas which will be appurtenant to and will pass with the title to the Lot. These rights, however, are subject to rights of the Association, and also are subject to the provisions below:
a. The right of the Association to establish and charge reasonable admission and other fees for the use of any recreational facility located in the Common Areas.
b. The right of the Association to establish and assess reasonable fees and charges for the use of the Common Areas.
c. The right of the Association, through its Board, to adopt reasonable rules and regulations (the "Rules and Regulations" or the "Rules") for the use of the Common Areas.
d. The right to suspend the right of use of the Common Areas for a period not exceeding six months for any infraction of the official Rules and Regulations of the Association concerning the use of the Common Areas.
e. The right to suspend an Owner's right to use the Common Areas when that Owner is delinquent in the payment of any assessments or Special Assessments.
f. Subject to any limitations that may be imposed here or by the By-Laws, each Owner may delegate his or her right of enjoyment in and to the Common Areas to the occupants of his or her Lot and to those occupants' guests.
3. The expenses of operating, maintaining and repairing the Common Area will be included by the Association as part of Association Expenses in the Budget and be computed as part of Association Expenses to be assessed by the Association, as provided below, against the Owners of the Lots. Expenses will include, but not be limited to, the establishment and maintenance of recreational facilities and programs in the Common Areas, regardless whether those facilities and programs are utilized by an Owner or the occupants of an Owner's Lot ("Common Area Expenses").
C. Responsibilities of the Association. Declarant has delegated to the Association the responsibility and duties of: (i) owning, operating, administering, improving, maintaining and repairing the Common Areas; (ii) owning, leasing, operating, administering, improving and repairing the rights-of-way, right-of-way improvements; (iii) owning, improving and maintaining the Common Area, the Residential Property, and other portions of the Committed Property; (iv) owning, operating, improving and maintaining the lighting at the entrance and (v) assessing and collecting Association Expenses. Further, each Owner will automatically be a member of the Association and, as such, is entitled to the rights and privileges of membership as provided in the Lake Manor Estates Documents and be responsible for the duties of the membership, including the duty to pay Association Expenses and to comply with the Lake Manor Estates Documents.
D. Architectural Review. Any improvements built upon the Committed Property for use as a Residence shall conform to the following requirements and restrictions:
a. Only single-family detached dwellings may be constructed for occupancy on any individual platted Lot. Only one such dwelling may be constructed per Lot. Such dwellings shall be at least 2,200 square feet of interior dwelling space for a single story dwelling and at least 2,500 square feet of interior dwelling space for a one-half story, or multi-story dwellings. Interior dwelling space shall be calculated by measuring gross interior floor space, as measured from exterior walls to exterior walls, but shall not include basements, attics, garages, carports, porches, terraces, decks, or outbuildings. No dwelling may exceed two and one-half stories in height at the elevation facing any street or road. The determination of whether a dwelling meets the applicable minimum square footage required for any dwelling shall be made by and in sole discretion of the Architectural Committee.
b. Any dwelling constructed other than by the Declarant must be first approved by the Architectural Review Committee as hereinafter set forth.
c. Driveways may be gravel during construction and for up to ninety days after issuance of an occupancy permit for the dwelling, but must thereafter be hard surfaced in concrete or a material deemed superior or equal to concrete by the Architectural Review Committee.
d. All detached single-family dwellings shall have an attached two car or larger garage.
e. Appropriate outbuildings may be constructed on Lot so long as in keeping with the architectural style of the main dwelling and if approved by the Architectural Review Committee.
f. No structures shall be placed within forty (40) feet of any Lot line fronting a street or road, and no structure shall be placed within fifteen (15) feet of any side or rear property line. Should the building setback requirements on a recorded Plat or as set forth in the County zoning ordinances in effect at the time of construction of such structure be more restrictive than those set forth herein then the most restrictive setback requirements will govern.
g. Neither property owners nor builders shall be permitted to cease construction prior to completion of any dwelling or allow the construction time to be excessively greater than the average or usual construction time for similar dwellings built by reputable contractors in the local area. No dwelling or part of any dwelling may be occupied for living purposes, temporary or permanent until construction is completed and a certificate of occupancy permit is issued or granted by Bedford County Officials.
h. No house trailer, mobile home, double-wide or modular home shall be permitted at any time on any lot. No semi tractor-trailer or similar commercial trucks shall be regularly parked on any lot.
i. The exposed foundation wall of any dwelling shall be brick or stone. No vinyl or plywood products shall be permitted as exterior siding except vinyl soffits and vinyl cedar shakes for decorative effect in gables, dormers, and other places as approved by the Architectural Committee. Hardiplank is an acceptable exterior siding product. In addition, the exposed exterior surface of all chimneys shall be faced with brick, stone, or dryvit. Any gas or wood fireplace appliance built into any dwelling shall be located on the inside of the dwelling or if it is to be located on the outside, it shall be enclosed in a chimney unless otherwise approved in writing by the Architectural Review Committee.
j. All utility lines shall be installed and maintained underground.
k. Off street parking for a minimum of two (2) vehicles, exclusive of garages, shall be provided on each lot to accommodate all vehicles owned by the residents of the dwelling. All recreational vehicles and related equipment, including but not limited to motor homes, boats, and boat trailers, other than on a temporary and non-recurring basis shall be garaged. All driveways shall be concrete, brick pavers, or other impervious surfaces.
l. Declarant strongly encourages all lot owners to make every effort to retain all mature trees on the property. The purpose of this paragraph is to preserve and protect the integrity, stability, and beauty of Lake Manor Estates including tree and mountain views.
m. All homeowners are required to purchase and install a standard Lake Manor Estates mailbox as prescribed by Declarant, which includes a paper box. No plastic newspaper boxes are allowed in Lake Manor Estates. Mailbox installation shall conform to the requirements of the Virginia Department of Transportation. Information and standards for the placement of mailboxes may be obtained by contacting the Permits and Subdivision Section, Bedford Residency Office 540-586-7910.
n. Any structure that was destroyed in whole or in part by fire or any other casualty must be rebuilt or removed. Restoration or demolition and removal of damaged structure must be commenced within 90 days of the casualty. If the structure is to be demolished, it must be demolished and all debris removed within 6 months. If rebuilding, the restoration/construction shall be completed within 9 months. Such restoration and rebuilding shall be conducted and approved in the same manner as any new construction or modification under the Architectural Review Committee.
o. Each property owner is responsible for all construction debris during the construction period. Debris should be placed in a temporary dumpster or removed from site and the building site kept in a reasonably neat manner as not to cause an eyesore for the neighbors and the overall appearance of the development. At the time of construction the builder and the lot owner will be liable and responsible jointly and severally for carrying out the appropriate erosion and sediment control measures (i.e. gravel construction entrances, driveway pipes, seeding, silt fence barriers, etc.) and insuring that they are properly installed and functioning as planned. If there is any question or concern the Architectural Review Committee shall have the final authority.
p. During construction, Lot Owner shall be responsible for any damages to roads, streets, Common Areas, adjacent property, or other properties in the development caused by such construction or the actions or negligence of the Lot Owner’s contractor, subcontractors, or agents involved in such construction. The Lot Owner shall at all times during construction maintain a gravel driveway through his or her property for access to the site and shall keep all streets and roads in the development free and clear of debris, dirt, and mud from such construction. If the Lot Owner fails to remove any mud or debris in a prompt manner, the Declarant may remove and clean the mud or debris and charge the Lot Owner for the cost.
ARTICLE III
DAM
A. Restricted Access. For safety purposes, and unless otherwise set forth herein, no Lot Owner shall have access to the dam or the immediate areas surrounding it.
B. Easement for Tax Map #115-A-38G.
1. Thomas P. Bell became the owner of real property located within the Committed Property, identified as Tax Map #115-A-38G, by a deed recorded in the Clerk’s Office for the Circuit Court of Bedford County as Instrument #120012928.
2. The dam and the immediate areas surrounding it, which are part of the Committed Property, provide access to the property currently owned by Thomas P. Bell and identified as Tax Map #115-A-38G.
3. The Declarant hereby grants unto Thomas P. Bell, a nonexclusive perpetual easement of right-of-way over the dam and the immediate areas surrounding it, for the purposes of ingress and egress to the property of Thomas P. Bell identified as Tax Map #115-A-38G.
ARTICLE IV
LAND USE COVENANTS, RESTRICTIONS AND EASEMENTS; CONVEYANCE OF COMMON AREAS
A. Land Use Covenants and Restrictions. Declarant agrees that the Committed Property will be used, transferred, demised, sold, conveyed and occupied subject to the terms of this Declaration as follows:
1. Residential Property: All portions of the Committed Property which are shown on a Plat as a lot or Lot are intended for residential use only. However, Declarant may, in its discretion: (i) cause a parcel, lot or Lot or portion of it to be dedicated or used for the right-of-way and utility purposes set forth in the Plat; and (ii) use a parcel, lot or Lot in connection with its sales programs, as adopted by Declarant from time to time. Except for the location of utilities, "residential use" means that only a residence which is designed and intended for use and occupancy as a single-family residence and residence-related improvements such as driveways, parking spaces, lawn areas and the like, may be erected or located on or within a Lot. Each Residence, and any alterations and improvements made to it or to the Lot, is subject to the approval of the Architectural Review Committee. Except as otherwise provided under this agreement, no commercial or business building may be erected on or within a Lot, and no business or commercial occupations may be conducted on or within any Lot, except for: (i) the sales and marketing program by Declarant of the Lots and improvements on it by Declarant; (ii) the construction, development and sale or rental of the Residential Property or portions of it; (iii) direct accessory services to the Residential Property such as utilities or Lot maintenance; (iv) related services and (v) otherwise with the permission of the Committee. Further, Residential Property may be subject to reasonable rules and regulations promulgated by the Association for the safety, welfare or benefit of the Residential Property or the other portions of Lake Manor Estates.
2. Common Areas: The Common Areas are to be used and conveyed solely in accordance with the provisions of this Declaration and the Lake Manor Estates Documents.
3. Administration of Common Areas by Association: The Association will administer, manage, operate and maintain the Common Areas as provided for in the Lake Manor Estates Documents. Consistent with the purposes set forth in this Article III, the Association, by its Board, may promulgate rules and regulations, which it may later modify, alter, amend and rescind. These rules, referred to collectively herein as the "Rules and Regulations" or "Rules," will cover the use, operation and enjoyment of the Common Areas, and the improvements located on them.
4. Declarant's Right of Use: In recognition of the fact that Declarant will have a continuing and substantial interest in the development and administration of Lake Manor Estates, Declarant hereby reserves for itself, and the Association acknowledges that Declarant has the right, to the use of the rights-of-way, right-of-way improvements and all of the Common Areas in conjunction with its program of sale, leasing, constructing and developing of Lake Manor Estates. Declarant will not incur any cost for these rights and privileges. Declarant (including, but not limited to, its employees and agents) also has the right to reasonable use of the Common Areas from time to time for sales and/or administrative offices, including, without limiting the generality of the above, the right to: (i) maintain "for sale" signs and billboards for the use and benefit of Declarant in and about the Common Areas; (ii) utilize, exclusively or non-exclusively at the discretion of Declarant, portions of the improvements on the Common Areas, as determined by Declarant for the sales offices, administrative offices, as well as for marketing purposes in and about the development of Lake Manor Estates, and for the sale of Lots and the sale, development, construction, marketing, and erection of improvements thereon. For purposes of this subparagraph B, the term "Declarant" will also include any Lender to or Mortgagee of Declarant or the successors or assigns thereof or any person or entity acquiring title to any of the Lots pursuant to a foreclosure of a Lender's mortgage or a deed in lieu of foreclosure. These rights and privileges, which will in no way limit Declarant's rights and privileges under the Lake Manor Estates Documents, will terminate on the sooner of (i) the date when Declarant no longer owns any Lots or (ii) the date on which Declarant notifies the Association of its voluntary written election to relinquish at an earlier date the rights and privileges of use, provided, however, Declarant may not relinquish any rights or privileges then subject to the provision of any lien, mortgage, security agreement, assignment or similar Declaration securing a loan by a Mortgagee to Declarant.
5. Lake Easements. There is reserved over those portions of any Lot below the contour of the level of the water within the lake, the portion of which is within Lake Manor Estates subdivision, an easement for the enjoyment of the waters of the lake for recreational purposes in favor of the Declarant, the owners of land adjoining the lake, the Owners of any Lot in Lake Manor Estates, the members of such Lot Owner’s immediate family, and occasional guests of the Lot Owner of reasonable number. There is also reserved a flowage easement over the Lots abutting the lake for the waters of the lake to the height of the dam.
B. Restrictions on Use of the Committed Property. Declarant declares that the Committed Property will be used, transferred, demised, sold, conveyed and occupied subject to the following terms of this Declaration:
1. Nuisances: No Owner may cause or permit any unreasonable or obnoxious noises or odors, and no nuisances or immoral or illegal activities are permitted in any of the Common Areas or Residential Properties.
2. Animals and Pets: Generally recognized house or yard pets, in reasonable number, may be kept and maintained on a lot provided such pets are not kept or maintained for commercial purposes. No animals may be kept in such numbers as to create a nuisance to the neighbors. Animals not recognized as house or yard pets include, but are not limited to, horses, goats, swine, sheep, cattle, poultry, and any other barnyard or zoo-type animals. These animals shall not cause an unreasonable nuisance or annoyance to other owners and they are not permitted to run free outside a homeowner’s yard. Owners are responsible for the removal from the Common Area and rights-of-way of solid waste caused by their pets, and of the sanitary disposal of such waste.
3. Clotheslines: Outdoor clotheslines and outdoor clothes-drying activities are prohibited on the Committed Property.
4. Removal of Sod and Shrubbery: No sod, topsoil, trees, or shrubbery may be removed from the Common Area by Owners without the written approval of the Board. Further, no change in the condition of the soil or the level of the land of any Committed Property may be made which results in any permanent change in the direction of flow and drainage of surface water which the Board determines to be detrimental to the drainage of Lake Manor Estates or to property values or safety of any real property or improvements in Lake Manor Estates.
5. Satellite Dishes, Antenna and Aerials: Satellite dishes less than 18 inches, antenna, aerials or any other similar electronic equipment or device of any kind may be installed or maintained on the Residential Property so long as the same are not capable of being viewed from a public road, unless with the permission of the Architectural Review Committee.
6. Garbage, Refuse, Storage of Materials and Fuels: No garbage, trash, refuse or rubbish may be deposited, dumped or kept on any part of the Lots or Common Area except in closed containers, dumpsters or other garbage collection facilities deemed suitable by the Board (the "Containers"). The Containers located on Residential Property will be kept in such a manner so the same may not be viewed from a public road, except that they can be placed at the front of a Lot for pick-up at the times and in accordance with the requirements of the garbage removal service or appropriate governmental agency providing the service, as the case may be, for the Residential Property. No building materials (except during the time of construction) and no unlicensed/inoperable vehicles may be stored outside of a Residence at any time. Storage of firewood shall be restricted to the rear yard and be well screened as not to cause an eyesore to adjoining Lot Owners. Propane tanks shall be buried.
7. Fences: No chain link or wooden fences are permitted on any lot. Aluminum and/or vinyl fencing is only allowed if reviewed and approved in writing by the architectural review committee. No dog runs allowed.
8. Machinery and Equipment: No machinery or equipment of any kind shall be placed, operated, or maintained upon or adjacent to any lot within the properties except such machinery or equipment that is usual and customary in connection with the development, maintenance, or construction of a residence, appurtenant structures, or other improvements within the properties.
9. Restriction of Further Subdivision: No Lot within the properties shall be further subdivided or separated into smaller lots or parcels by any owner, and no portion less than all of any such Lot shall be conveyed or transferred by any owner. This provision shall not, in any way, limit Declarant from subdividing or separating into smaller lots or parcels any property not yet platted or subdivided into Lots owned by Declarant. The provision of this section shall not apply to the division of any Lot between two adjoining Lots that shall then become a part of the adjoining Lot. Any number of Lots may be combined to form a larger Lot.
10. Burning: It shall be the responsibility of each property owner and tenant to prevent the development of any unclean, unsightly, or unkempt conditions of buildings or grounds on such property. No outside burning of wood, leaves, trash, garbage, or other refuse shall be permitted on any property with a single family residence fully constructed on it.
11. Utility Service: No lines, wires, or other devices for the communication or transmission of electric current or power, including telephone, television, or radio signal, shall be erected, placed, or maintained anywhere in or upon any property within the properties unless the same shall be contained in conduits or cables installed and maintained underground or concealed in, under or on buildings or other structures approved by the Architectural Review Committee. No provision hereof shall be deemed to forbid the erection of temporary power or telephone structures incident to the construction of buildings or structures approved by the Architectural Review Committee or prevent or preclude the relocation of any existing facilities by the appropriate utility company.
12. Improvements and Alterations: No improvements, alterations, repairs, excavations, or other work which in any way alters the exterior appearance of any property within the properties or the improvements located from its natural or improved state existing on the date such property was first conveyed in fee simple to the Declarant, shall be made or done without the prior approval of the Architectural Review Committee, except as otherwise expressly provided in this Declaration. No building, fence, wall, residence, or other structure shall be commenced, erected, maintained, improved, altered, made or done without the prior written approval of the Architectural Review Committee or any committee established by the Architectural Review Committee for that purpose. Pursuant to its rulemaking power, the Architectural Review Committee shall have the right to refuse to approve any plans or specifications or grading plans, which are not suitable or desirable in its opinion, for aesthetic or other reasons, and in so passing upon such plans, specifications and grading plans, and without any limitation of the foregoing, it shall have the right to take into consideration the suitability of the proposed building or structure, and of the materials of which it is to be built, the site upon which it is proposed to erect the same, and the harmony thereof with the surrounding and the adjacent or neighboring property. All subsequent alterations, including exterior color scheme, shall be subject to the prior approval of the Architectural Review Committee. No changes or deviations in or from such plans and specifications once approved shall be made without the prior written approval of the Architectural Review Committee. All decisions of the Architectural Review Committee shall be final, and no Lot Owner or other parties shall have recourse against the Architectural Review Committee for its refusal to approve any such plans and specifications or plot plan, including lawn area and landscaping. Any decorative lawn ornaments or statues must be approved by the Architectural Review Committee.
13. Easements: No Lot Owner, other than the Declarant, shall have the right to grant any private ingress/egress easements to other Lot Owners or Lots, to other entities, or as a means of ingress or egress to land outside of Lake Manor Estates, provided however that this restriction shall not be construed in any way to restrict access by public servants for public health and safety purposes or access to Declarant’s other properties.
14. Cutting of Trees: No owner shall clear cut timber or trees off of a lot without the approval of the Architectural Review Committee. Diseased, rotted, or significantly damaged trees shall be excepted from this provision.
15. Right of Entry: During reasonable hours, any member of the Architectural Review Committee, or any authorized representative of the Architectural Review Committee, shall have the right to enter upon and inspect any Lot within the properties and the improvements thereon, except for the interior portions of any residence or other structure, for the purpose of ascertaining whether or not the provisions of Declaration have been or are being complied with, and such persons shall not be deemed guilty of trespass by reason of such entry.
16. Uniform Fixtures, Etc.: All exterior lighting fixtures and signs identifying name and address must be uniform throughout the Residential Property. Lot Owners are responsible for keeping yard lighting in operable condition. The Committee must establish and make available plans, specifications, or manufacturer's instructions in connection with such lighting fixtures, mailboxes and signs. The only signs permitted to be located on the exterior of a Lot are: customary “For Sale” and realtor signs advising that the property is for sale, and signs of no more than six (6) square feet identifying any contractor doing work on the Lot. All homeowners are required to purchase and use the Lake Manor Estates mailbox so they are uniform throughout the neighborhood and no other mailboxes may be used.
17. Restrictions on Lease of Residential Property: No owner may rent his or her Lot unless the same is approved by the Association. All rental and lease agreements (referred to as the "Lease Agreements") between an owner and a tenant or lessee of the owner's Lot and/or Residence must be in writing and provide that the Lease Agreement is subject to all the terms and provisions of the Lake Manor Estates Documents, and are subject to approval by the Association. No Lot or residence may be used as a “time share.”
18. Signs: No signs or billboards shall be allowed on any Lot, except for (i) “For Sale” signs of usual size and shape and (ii) signs of general contractors no larger than six (6) square feet and only while a dwelling is under construction.
19. Parking: No commercial vehicles, recreational vehicles, or trailers of any kind will be allowed to park or be parked at any time on a Lot or in a platted right-of-way unless it is a commercial vehicle in the process of being loaded or unloaded, and only for a period of time as is reasonably necessary to accomplish those purposes. No inoperable vehicles or watercraft may be parked except in a garage. For purposes of this Declaration, a commercial vehicle is any truck which, because of its size, weight, or sign affixed to it, painted or exhibited on it, is so designated from time to time, by the Association; provided, however, that any truck with more than two axles or larger than one-quarter ton will be deemed a commercial vehicle.
20. Maintenance of Exterior and Yard: The exterior of each Residence will at all times be maintained and kept so that it presents a freshly painted or stained "like new" appearance. Each owner must keep his or her Lot free of trash, weeds, and other unsightly material, must keep his or her Lot at all times in a neat and attractive condition, and must maintain all lawn, landscape areas and yard lighting in a sightly manner and operable condition. If an owner fails to maintain the exterior of his or her Residence and his or her yard as above provided in this paragraph, the Association, after written notice to owner and approval by a majority of the Directors of the Association, has the right to enter on the Lot to correct, repair, restore, paint, mow, trim and maintain any of the Residences and Lots. All costs related to the correction, repair, work or restoration, including attorney's fees, will become a Special Assessment against the Lot. Further, each Lot Owner shall keep this property free from tall grass, undergrowth, dead trees, trash, and rubbish. Each Lot Owner shall be responsible for seeding, mowing, and maintaining that portion of land between each Lot line and the pavement of the street. Each owner of a Lot abutting the lake shall maintain a pleasing appearance, proper contour of the lake bank and prevent erosion.
21. Watercraft. No powered watercraft shall be allowed on the lake, except those powered by electric motors. The speed of powered watercraft is limited to 10 miles per hour on the lake.
22. Docks and Piers. No docks or piers may be constructed into the waters of the lake without approval of the Architectural Committee. No dock or pier may extend more than 20 feet into the lake.
23. Association Approval: Except as otherwise provided in this Declaration, neither the Board nor the Architectural Review Committee will be deemed to have approved any request unless the approval is granted in writing and signed by an officer of the Association.
24. No Implied Waiver: The failure of the Board to object to an Owner's or other party's failure to comply with the covenants or restrictions contained in this Declaration or in other Lake Manor Estates (including the Rules and Regulations) now or promulgated later will in no event be deemed a waiver by the Board or of any other party having an interest of its right to object to it and to seek compliance in accordance with the provisions of such documents.
C. Disputes as to Use. In the event there is any dispute as to whether the use of the Residential Property or the Common Area is subject to the provisions of this Declaration or complies with the covenants and restrictions contained in the Declaration (including any Addendum to it), the dispute will be referred to the Board, and a determination rendered by the Board with respect to the dispute will be final and binding on all concerned parties. However, any use by Declarant of the Residential Property or the Common Area will be deemed a use which complies with the Declaration and will not be subject to a determination to the contrary by the Board.
D. Conveyance of Common Areas. At such time as title to the Common Areas, or any portions of it, are vested in the Association, the Common Areas and the improvements on it may not be abandoned, partitioned, subdivided, alienated, released, transferred, hypothecated, or otherwise encumbered without the prior written approval of three-quarters (3/4) of the members of the Association. At the time of conveyance of the Common Areas to the Association, Declarant shall convey title to the Common Areas to the Association by special warranty deed, and all real estate taxes shall be prorated as of the date of conveyance.
ARTICLE V
OBLIGATION TO EXPEND ASSOCIATION MONIES AND PAY EXPENSES
In order to fulfill the covenants and conditions contained in this Declaration and in order to maintain and operate the Common Areas and the improvements, lines and facilities now or later made the subject of this Declaration for the recreation, use, safety, welfare and benefit of the Owners, their families, guests, invitees and lessees, and to otherwise enable the Association to comply with the terms and provisions and obligations imposed in this Declaration, there is imposed on each Lot and the improvements on it and the Owners the affirmative obligation to pay Association Expenses set forth in this Declaration. There also is imposed on the Association the affirmative obligation to assess and collect Assessments equal to the Association Expenses and to spend those amounts necessary to meet Association Expenses. Such Assessments may be collected in any manner allowed by law and shall constitute a lien against each Lot as may be allowed by provisions of applicable law. "Association Expenses" are as defined in Article V, Section A in this Declaration.
A. Association Expenses. Association Expenses include:
1. Taxes: Any taxes levied on the Common Area by any taxing authority, including all taxes, charges, assessments and impositions and liens for public improvements, special charges and assessments, and in general, all taxes and tax liens which may be assessed against the Common Areas and against all personal property and improvements which are not or which later may be placed, including any interest, penalties and other charges which may accrue on the taxes.
2. Utility Expenses: All expenses levied for utilities providing services for the Front Entrance and Common Areas, whether supplied by a private or public firm, including, without limitation, all charges for water, gas, electricity, telephone, sewer, landscaping and any other type of utility or any other type of service charge.
3. Insurance: The premiums on the policies of insurance which the Association in its sole discretion determines to obtain; provided, however, that the coverage of the insurance will include the following:
a. Property insurance in an amount equal to the then-current full replacement cost (exclusive of land, foundation, excavation and other items normally excluded from the coverage) of the improvements on the Common Area.
b. A comprehensive policy of public liability insurance insuring the Association with limits of not less than $1,000,000.00 covering all claims for personal injury and/or property damage (property damage coverage may be limited to $500,000.00, notwithstanding the above) arising out of a single occurrence, the coverage to include protection against water damage liability, liability for non-owned and hired automobiles, liability for property of others, and any other risks as will customarily be covered with respect to areas similar to the Common Areas in construction, location and use, and including flood hazard insurance for the Common Areas.
c. Provided it is both available and affordable, as determined by the Association in its sound discretion, fidelity coverage will be purchased for the purpose of protecting against dishonest acts on the part of officers, the Board, and employees of the Association, and all others responsible for handling Association funds.
d. Any other forms of insurance and coverage as the Association determined to be required or beneficial for the protection of the Association or preservation of the Common Areas or in the best interest of Lake Manor Estates.
4. Common Area Expenses. The expenses of operating, maintaining and repairing the Common Area will be included by the Association as part of the Association Expenses in the Budget and be computed as part of Association Expenses to be assessed by the Association, as provided below, against the Owners of the Lots. Expenses will include, but not be limited to, the establishment and maintenance of the Common Areas, regardless of whether the Common Areas are utilized by an Owner or the occupants of an Owner’s Lot (“Common Area Expenses”).
B. Collection of Assessments.
1. Lien for Payment of Assessments and Subordination of Lien to First and Second Mortgages. There shall be continuing lien upon each of the Lots herein, in order to secure the payment of the Assessments (including interest, costs of collection and reasonable attorney’s fees) provided under this Declaration, but such lien shall be subject to and subordinate to any first and second deeds for trust placed on the Lot at any time prior to perfection of the lien by filing in the Clerk’s Office of the Circuit Court of the County of Bedford a verified Memorandum of Lien in accordance with §55-516 of the Code of Virginia. After the lien is perfected, it shall have priority over all subsequent liens and encumbrances, except as set forth in §55-516 of the Code of Virginia. A statement from the Association showing the balance due on any Assessment shall be prima facie proof of the current Assessment balance due and delinquency, if any, due on a particular Lot. In addition to the foregoing, Assessments may be collected by any means allowable under the laws of the Commonwealth of Virginia.
ARTICLE VI
ARCHITECTURAL REVIEW COMMITTEE
1. Organization. The Association will establish an Architectural Review Committee (the “Committee”) made up of three members, all of whom shall initially be appointed by Declarant and who may be removed by Declarant at any time.
2. Powers. Except for Residences and improvements constructed by or for the Declarant, the Committee is responsible for approving or disapproving all building and landscaping plans and specifications for any improvements to or landscaping upon any Lots, and for approving and disapproving all other requests required by the Lake Manor Estates Documents to be ruled upon by the Committee. The Committee may look to and approve or disapprove the methods of construction, site plans, ingress/egress, quality, and suitability of materials, location of improvements, reputation of contractors, workmanship, adherence to good principals of design and architecture, and whether or not the design is in keeping with traditional, recognized styles of design, and any other matters deemed important by the Committee to its determination.
3. Adherence to Plans. All structures, alterations, or additions must be constructed only in accordance with approved plans and specifications.
4. Subsequent Alterations. Any alterations, additions, or other improvements to any structure or landscaping plan, including painting or staining of structures other than in the original colors, must be approved by the Architectural Review Committee.
5. All Decisions Final. Decisions of the Architectural Review Committee are final and not subject to review. Approval or disapproval of any plans or other requests shall be in the sole discretion of the Committee based on aesthetic or other reasons it deems appropriate which reasons need not be stated. Approval in any case or circumstance gives no rights to approval in a case or circumstance deemed similar by the applicant.
6. Method of Approval or Disapproval. All requests for approval or disapproval must be made in writing and shall be accompanied by at least one (1) copy of proposed plans and specifications as the case may be. The Committee need not consider the application until it is in receipt of all plans and specifications reasonably required by it to make a decision. The Committee shall have ten (10) days from receipt of the application in which to request additional materials. The Committee shall have thirty (30) days from its receipt of all such required materials in which to render its decision. Such decisions shall be in writing. If the Committee fails to render a written approval or disapproval within the said thirty (30) days, such application shall be deemed approved. The Committee shall establish rules and procedures consistent herewith to implement the provisions hereof.
7. Composition After Conveyance of Common Areas by Declarant. After the end of Declarant’s control of the Association, the Association may elect the three (3) members of the Committee who shall serve at the pleasure of the Board.
ARTICLE VII
ASSOCIATION
1. Membership. Every Owner of a Lot shall be a Member of the Association. Declarant shall be a Member of the Association as set forth in this Declaration and in the Articles of Incorporation and Bylaws of the Association as long as Declarant owns any Lot or parcel in Lake Manor Estates. Membership in the Association shall be appurtenant to, and may not be separated or alienated from, ownership of Lots. The Association shall not discriminate on the basis of race, creed or sex in its membership.
2. Voting Rights. The Association shall have the following two classes of voting membership:
a. Class A. Class A Membership shall be all Owners of Lots with the exception of the Class B Member. Class A Members shall be entitled to one (1) vote for each Lot owned by said Class A Member. In the event that more than one person or entity holds such interest in Lot, all such persons or entities shall be Members. The vote for such Lot shall be exercised as they among themselves determine, but in no event shall more than one vote be cast with respect to any Lot.
b. Class B. The Class B Member shall be the Declarant. The Class B Member shall be entitled to three (3) votes for each of the residential dwelling Lots which Declarant has not transferred to a Class A Member in the form of a Lot. Declarant’s Class B Membership shall terminate on the date on which Declarant has transferred to Class A Members a total of 75% of the residential dwelling Lots or Lots. Declarant may terminate its Class B Membership at any time by filing with the Association and in the Clerk’s Office of the Circuit Court of the County of Bedford, Virginia, a written certificate terminating Declarant’s interest in Lake Manor Estates as Class B Member. At such time as Declarant’s Class B Membership terminates, Declarant shall become a Class A Member to the extent, and for the period during which Declarant owns any Lot in Lake Manor Estates.
3. Powers and Duties of the Association. The powers and duties of the Association shall be those set forth in this Declaration and the Articles of Incorporation and Bylaws and/or Rules and Regulations of the Association, as the same may be amended from time to time.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
1. Amendment. The Declarant reserves the right to change and modify the subdivision plan of Lake Manor Estates by eliminating, combining, or changing the size and shape of any unsold Lot shown thereof, including any building setback, or dwelling area requirement or to open, close or relocate new streets or undedicated streets, including the right to convert Lots into streets. The Declarant also reserve the right to grant variances for these restrictions where in its sole discretion a hardship will be caused by compliance herein. These rights shall terminate and be of no effect when Declarant or its assigns does not own a Lot in Lake Manor Estates subdivision. As long as Declarant owns one or more lots, the Declarant or the Architectural Review Committee may enforce or amend these restrictions and reservations. At and after such time as the Declarant does not own any such Lot, or if Declarant gives up its rights as Declarant in writing, these restrictions may be amended or terminated only by the written consent of the Owners of at least 66% of the Lots in Lake Manor Estates, duly recorded in the Clerk’s office of the Circuit Court of Bedford County, Virginia.
2. Reservation of Easements. There are reserved perpetual, alienable, and reasonable easements within the Committed Property and the right on, over, and under the ground to erect, maintain and use electric and telephone poles, wires, cables, conduits, sewers, water mains and other public conveniences or utilities, on in or over the rear and/or front 20 feet of each lot and 15 feet along the sides of each lot within the development. There is further reserved with in the above-described real property along the front, rear, and side lines of all Lots in the Lake Manor Estates the right to maintain and use drainage easements 15 feet in width as the same are necessary for the proper flow and discharge of water from the streets in the aforesaid subdivision, and as the same are required from time to time by the Virginia Department of Transportation.
3. Applicable Law. This Declaration shall be interpreted according to the laws of the State of Virginia.
4. Conflict With Other Documents. To the extent this Declaration conflicts with any other Lake Manor Estates Documents, including the Association Articles and Bylaws, the Articles shall rule over the Declaration and Bylaws and the Declaration shall rule over the Bylaws and all other documents.
BACKGROUND
A. Declarant is the owner in fee simple of real property described in Exhibit "A," attached hereto (the "Committed Property"). Declarant has developed and is developing the Committed Property and is by this Declaration providing for the enhancement and protection of the value, attractiveness, and desirability of the development property lying within the Committed Property. The land use plan for the Committed Property contains (i) single-family residential lots (the "Residential Property"); (ii) roads; (iii) lighting and utility structures and easements; and (iv) Common Areas and appurtenant structures.
B. Declarant has caused the formation of the Lake Manor Estates Owners Association, Inc. (the "Association") for the purpose of accepting the delegation and assignment in this Declaration of certain powers and duties, including, but not limited to, its enforcement and the collection and disbursement of the assessments and disbursement of the assessments to cover Association expenses and obligations.
NOW, THEREFORE, in consideration of the premises which are the subject of this agreement and the benefit to be received by itself and all persons claiming by, through or under it, Declarant hereby: (i) establishes this Declaration ("Declaration" will include this Declaration and any amendment or addendum to it); (ii) declares that the Committed Property will be owned, held, used, conveyed, sold and occupied subject to this Declaration; (iii) declares that all covenants and restrictions referred to below will run with the title to all portions of the Committed Property; and (iv) declares that the easements described below will be perpetual in duration unless otherwise provided.
ARTICLE I
DEFINITIONS
1. "Articles" refers to the Articles of Incorporation of the Association, as may be amended from time to time.
2. "Association" refers to the Lake Manor Estates Owners Association, Inc., a Virginia not-for-profit corporation.
3. "Association Expenses" refers to the expenses for which Owners of Lots are liable to the Association as described and provided in the Lake Manor Estates Documents.
4. "Board" refers to the Board of Directors of the Association.
5. “Budget" refers to the annual budget for the Association as prepared and adopted by the Board and showing all income and expenditures as anticipated for a forthcoming fiscal year of the Association.
6. "By-Laws" refers to the by-laws of the Association, as amended from time to time.
7. "Committed Property" refers to the property described in Exhibit A.
8. "Common Areas" refers to those portions of Committed Property which are or become, pursuant to this Declaration and any amendment, streets, roads, walkways, trails, parks, recreational areas, open space, those portions of the lake within the boundaries of Lake Manor Estates subdivision, those portions of the lake dam within the boundaries of Lake Manor Estates subdivision, and any other areas designated as such on any recorded plat of subdivision for Lake Manor Estates.
9. "County" refers to the County of Bedford, State of Virginia.
10. "Lake Manor Estates Documents" refers to this Declaration, the Articles and By- Laws, together with all recorded amendments to it, as well as Rules and Regulations promulgated pursuant to it.
11. "Lot" refers to a residential lot as shown on a Plat.
12. "Owner" refers to the owner in fee simple to a Lot, but excludes Declarant during those times at which Declarant is owner of any Lot, and excludes those having an interest in a Lot merely as security for the performance of an obligation, in which event Owner refers to the Contract Purchaser.
13. "Plat" refers to that plat filed for record simultaneously with these Declarations, under which a portion of the Committed Property is subdivided into Lots or parcels.
14. "Residence" refers to a residential dwelling unit constructed, erected or located on a residential Lot that is designed and intended for use and occupancy as a residence by a single family.
15. "Residential Property" refers, collectively, to the Lots designated for residential use and all improvements to any Lot.
16. "Special Assessments" refers to any assessment other than the annual Assessment levied by the Declarant or by the Association on an Owner of a Lot.
ARTICLE II
LAKE MANOR ESTATES
A. Committed Property.
1. Declarant will develop the Committed Property as a residential community known as Lake Manor Estates in accordance with the County’s applicable zoning regulations. The Committed Property is subject to this Declaration.
2. The total number of residential dwelling Lots that could be constructed on the Committed Property is 69 (which is called the "Total Dwelling Lots'').
B. Committed Property; Uses; Property Rights. The Committed Property contains Residential Property and Common Areas as more particularly described here and in the Lake Manor Estates Documents.
1. The Residential Property is the aggregate of all of the Lots designated for residential use in the Committed Property, as shown on all Plats.
2. Every Owner of a Lot is hereby granted a nonexclusive right and easement of enjoyment in and to the Common Areas which will be appurtenant to and will pass with the title to the Lot. These rights, however, are subject to rights of the Association, and also are subject to the provisions below:
a. The right of the Association to establish and charge reasonable admission and other fees for the use of any recreational facility located in the Common Areas.
b. The right of the Association to establish and assess reasonable fees and charges for the use of the Common Areas.
c. The right of the Association, through its Board, to adopt reasonable rules and regulations (the "Rules and Regulations" or the "Rules") for the use of the Common Areas.
d. The right to suspend the right of use of the Common Areas for a period not exceeding six months for any infraction of the official Rules and Regulations of the Association concerning the use of the Common Areas.
e. The right to suspend an Owner's right to use the Common Areas when that Owner is delinquent in the payment of any assessments or Special Assessments.
f. Subject to any limitations that may be imposed here or by the By-Laws, each Owner may delegate his or her right of enjoyment in and to the Common Areas to the occupants of his or her Lot and to those occupants' guests.
3. The expenses of operating, maintaining and repairing the Common Area will be included by the Association as part of Association Expenses in the Budget and be computed as part of Association Expenses to be assessed by the Association, as provided below, against the Owners of the Lots. Expenses will include, but not be limited to, the establishment and maintenance of recreational facilities and programs in the Common Areas, regardless whether those facilities and programs are utilized by an Owner or the occupants of an Owner's Lot ("Common Area Expenses").
C. Responsibilities of the Association. Declarant has delegated to the Association the responsibility and duties of: (i) owning, operating, administering, improving, maintaining and repairing the Common Areas; (ii) owning, leasing, operating, administering, improving and repairing the rights-of-way, right-of-way improvements; (iii) owning, improving and maintaining the Common Area, the Residential Property, and other portions of the Committed Property; (iv) owning, operating, improving and maintaining the lighting at the entrance and (v) assessing and collecting Association Expenses. Further, each Owner will automatically be a member of the Association and, as such, is entitled to the rights and privileges of membership as provided in the Lake Manor Estates Documents and be responsible for the duties of the membership, including the duty to pay Association Expenses and to comply with the Lake Manor Estates Documents.
D. Architectural Review. Any improvements built upon the Committed Property for use as a Residence shall conform to the following requirements and restrictions:
a. Only single-family detached dwellings may be constructed for occupancy on any individual platted Lot. Only one such dwelling may be constructed per Lot. Such dwellings shall be at least 2,200 square feet of interior dwelling space for a single story dwelling and at least 2,500 square feet of interior dwelling space for a one-half story, or multi-story dwellings. Interior dwelling space shall be calculated by measuring gross interior floor space, as measured from exterior walls to exterior walls, but shall not include basements, attics, garages, carports, porches, terraces, decks, or outbuildings. No dwelling may exceed two and one-half stories in height at the elevation facing any street or road. The determination of whether a dwelling meets the applicable minimum square footage required for any dwelling shall be made by and in sole discretion of the Architectural Committee.
b. Any dwelling constructed other than by the Declarant must be first approved by the Architectural Review Committee as hereinafter set forth.
c. Driveways may be gravel during construction and for up to ninety days after issuance of an occupancy permit for the dwelling, but must thereafter be hard surfaced in concrete or a material deemed superior or equal to concrete by the Architectural Review Committee.
d. All detached single-family dwellings shall have an attached two car or larger garage.
e. Appropriate outbuildings may be constructed on Lot so long as in keeping with the architectural style of the main dwelling and if approved by the Architectural Review Committee.
f. No structures shall be placed within forty (40) feet of any Lot line fronting a street or road, and no structure shall be placed within fifteen (15) feet of any side or rear property line. Should the building setback requirements on a recorded Plat or as set forth in the County zoning ordinances in effect at the time of construction of such structure be more restrictive than those set forth herein then the most restrictive setback requirements will govern.
g. Neither property owners nor builders shall be permitted to cease construction prior to completion of any dwelling or allow the construction time to be excessively greater than the average or usual construction time for similar dwellings built by reputable contractors in the local area. No dwelling or part of any dwelling may be occupied for living purposes, temporary or permanent until construction is completed and a certificate of occupancy permit is issued or granted by Bedford County Officials.
h. No house trailer, mobile home, double-wide or modular home shall be permitted at any time on any lot. No semi tractor-trailer or similar commercial trucks shall be regularly parked on any lot.
i. The exposed foundation wall of any dwelling shall be brick or stone. No vinyl or plywood products shall be permitted as exterior siding except vinyl soffits and vinyl cedar shakes for decorative effect in gables, dormers, and other places as approved by the Architectural Committee. Hardiplank is an acceptable exterior siding product. In addition, the exposed exterior surface of all chimneys shall be faced with brick, stone, or dryvit. Any gas or wood fireplace appliance built into any dwelling shall be located on the inside of the dwelling or if it is to be located on the outside, it shall be enclosed in a chimney unless otherwise approved in writing by the Architectural Review Committee.
j. All utility lines shall be installed and maintained underground.
k. Off street parking for a minimum of two (2) vehicles, exclusive of garages, shall be provided on each lot to accommodate all vehicles owned by the residents of the dwelling. All recreational vehicles and related equipment, including but not limited to motor homes, boats, and boat trailers, other than on a temporary and non-recurring basis shall be garaged. All driveways shall be concrete, brick pavers, or other impervious surfaces.
l. Declarant strongly encourages all lot owners to make every effort to retain all mature trees on the property. The purpose of this paragraph is to preserve and protect the integrity, stability, and beauty of Lake Manor Estates including tree and mountain views.
m. All homeowners are required to purchase and install a standard Lake Manor Estates mailbox as prescribed by Declarant, which includes a paper box. No plastic newspaper boxes are allowed in Lake Manor Estates. Mailbox installation shall conform to the requirements of the Virginia Department of Transportation. Information and standards for the placement of mailboxes may be obtained by contacting the Permits and Subdivision Section, Bedford Residency Office 540-586-7910.
n. Any structure that was destroyed in whole or in part by fire or any other casualty must be rebuilt or removed. Restoration or demolition and removal of damaged structure must be commenced within 90 days of the casualty. If the structure is to be demolished, it must be demolished and all debris removed within 6 months. If rebuilding, the restoration/construction shall be completed within 9 months. Such restoration and rebuilding shall be conducted and approved in the same manner as any new construction or modification under the Architectural Review Committee.
o. Each property owner is responsible for all construction debris during the construction period. Debris should be placed in a temporary dumpster or removed from site and the building site kept in a reasonably neat manner as not to cause an eyesore for the neighbors and the overall appearance of the development. At the time of construction the builder and the lot owner will be liable and responsible jointly and severally for carrying out the appropriate erosion and sediment control measures (i.e. gravel construction entrances, driveway pipes, seeding, silt fence barriers, etc.) and insuring that they are properly installed and functioning as planned. If there is any question or concern the Architectural Review Committee shall have the final authority.
p. During construction, Lot Owner shall be responsible for any damages to roads, streets, Common Areas, adjacent property, or other properties in the development caused by such construction or the actions or negligence of the Lot Owner’s contractor, subcontractors, or agents involved in such construction. The Lot Owner shall at all times during construction maintain a gravel driveway through his or her property for access to the site and shall keep all streets and roads in the development free and clear of debris, dirt, and mud from such construction. If the Lot Owner fails to remove any mud or debris in a prompt manner, the Declarant may remove and clean the mud or debris and charge the Lot Owner for the cost.
ARTICLE III
DAM
A. Restricted Access. For safety purposes, and unless otherwise set forth herein, no Lot Owner shall have access to the dam or the immediate areas surrounding it.
B. Easement for Tax Map #115-A-38G.
1. Thomas P. Bell became the owner of real property located within the Committed Property, identified as Tax Map #115-A-38G, by a deed recorded in the Clerk’s Office for the Circuit Court of Bedford County as Instrument #120012928.
2. The dam and the immediate areas surrounding it, which are part of the Committed Property, provide access to the property currently owned by Thomas P. Bell and identified as Tax Map #115-A-38G.
3. The Declarant hereby grants unto Thomas P. Bell, a nonexclusive perpetual easement of right-of-way over the dam and the immediate areas surrounding it, for the purposes of ingress and egress to the property of Thomas P. Bell identified as Tax Map #115-A-38G.
ARTICLE IV
LAND USE COVENANTS, RESTRICTIONS AND EASEMENTS; CONVEYANCE OF COMMON AREAS
A. Land Use Covenants and Restrictions. Declarant agrees that the Committed Property will be used, transferred, demised, sold, conveyed and occupied subject to the terms of this Declaration as follows:
1. Residential Property: All portions of the Committed Property which are shown on a Plat as a lot or Lot are intended for residential use only. However, Declarant may, in its discretion: (i) cause a parcel, lot or Lot or portion of it to be dedicated or used for the right-of-way and utility purposes set forth in the Plat; and (ii) use a parcel, lot or Lot in connection with its sales programs, as adopted by Declarant from time to time. Except for the location of utilities, "residential use" means that only a residence which is designed and intended for use and occupancy as a single-family residence and residence-related improvements such as driveways, parking spaces, lawn areas and the like, may be erected or located on or within a Lot. Each Residence, and any alterations and improvements made to it or to the Lot, is subject to the approval of the Architectural Review Committee. Except as otherwise provided under this agreement, no commercial or business building may be erected on or within a Lot, and no business or commercial occupations may be conducted on or within any Lot, except for: (i) the sales and marketing program by Declarant of the Lots and improvements on it by Declarant; (ii) the construction, development and sale or rental of the Residential Property or portions of it; (iii) direct accessory services to the Residential Property such as utilities or Lot maintenance; (iv) related services and (v) otherwise with the permission of the Committee. Further, Residential Property may be subject to reasonable rules and regulations promulgated by the Association for the safety, welfare or benefit of the Residential Property or the other portions of Lake Manor Estates.
2. Common Areas: The Common Areas are to be used and conveyed solely in accordance with the provisions of this Declaration and the Lake Manor Estates Documents.
3. Administration of Common Areas by Association: The Association will administer, manage, operate and maintain the Common Areas as provided for in the Lake Manor Estates Documents. Consistent with the purposes set forth in this Article III, the Association, by its Board, may promulgate rules and regulations, which it may later modify, alter, amend and rescind. These rules, referred to collectively herein as the "Rules and Regulations" or "Rules," will cover the use, operation and enjoyment of the Common Areas, and the improvements located on them.
4. Declarant's Right of Use: In recognition of the fact that Declarant will have a continuing and substantial interest in the development and administration of Lake Manor Estates, Declarant hereby reserves for itself, and the Association acknowledges that Declarant has the right, to the use of the rights-of-way, right-of-way improvements and all of the Common Areas in conjunction with its program of sale, leasing, constructing and developing of Lake Manor Estates. Declarant will not incur any cost for these rights and privileges. Declarant (including, but not limited to, its employees and agents) also has the right to reasonable use of the Common Areas from time to time for sales and/or administrative offices, including, without limiting the generality of the above, the right to: (i) maintain "for sale" signs and billboards for the use and benefit of Declarant in and about the Common Areas; (ii) utilize, exclusively or non-exclusively at the discretion of Declarant, portions of the improvements on the Common Areas, as determined by Declarant for the sales offices, administrative offices, as well as for marketing purposes in and about the development of Lake Manor Estates, and for the sale of Lots and the sale, development, construction, marketing, and erection of improvements thereon. For purposes of this subparagraph B, the term "Declarant" will also include any Lender to or Mortgagee of Declarant or the successors or assigns thereof or any person or entity acquiring title to any of the Lots pursuant to a foreclosure of a Lender's mortgage or a deed in lieu of foreclosure. These rights and privileges, which will in no way limit Declarant's rights and privileges under the Lake Manor Estates Documents, will terminate on the sooner of (i) the date when Declarant no longer owns any Lots or (ii) the date on which Declarant notifies the Association of its voluntary written election to relinquish at an earlier date the rights and privileges of use, provided, however, Declarant may not relinquish any rights or privileges then subject to the provision of any lien, mortgage, security agreement, assignment or similar Declaration securing a loan by a Mortgagee to Declarant.
5. Lake Easements. There is reserved over those portions of any Lot below the contour of the level of the water within the lake, the portion of which is within Lake Manor Estates subdivision, an easement for the enjoyment of the waters of the lake for recreational purposes in favor of the Declarant, the owners of land adjoining the lake, the Owners of any Lot in Lake Manor Estates, the members of such Lot Owner’s immediate family, and occasional guests of the Lot Owner of reasonable number. There is also reserved a flowage easement over the Lots abutting the lake for the waters of the lake to the height of the dam.
B. Restrictions on Use of the Committed Property. Declarant declares that the Committed Property will be used, transferred, demised, sold, conveyed and occupied subject to the following terms of this Declaration:
1. Nuisances: No Owner may cause or permit any unreasonable or obnoxious noises or odors, and no nuisances or immoral or illegal activities are permitted in any of the Common Areas or Residential Properties.
2. Animals and Pets: Generally recognized house or yard pets, in reasonable number, may be kept and maintained on a lot provided such pets are not kept or maintained for commercial purposes. No animals may be kept in such numbers as to create a nuisance to the neighbors. Animals not recognized as house or yard pets include, but are not limited to, horses, goats, swine, sheep, cattle, poultry, and any other barnyard or zoo-type animals. These animals shall not cause an unreasonable nuisance or annoyance to other owners and they are not permitted to run free outside a homeowner’s yard. Owners are responsible for the removal from the Common Area and rights-of-way of solid waste caused by their pets, and of the sanitary disposal of such waste.
3. Clotheslines: Outdoor clotheslines and outdoor clothes-drying activities are prohibited on the Committed Property.
4. Removal of Sod and Shrubbery: No sod, topsoil, trees, or shrubbery may be removed from the Common Area by Owners without the written approval of the Board. Further, no change in the condition of the soil or the level of the land of any Committed Property may be made which results in any permanent change in the direction of flow and drainage of surface water which the Board determines to be detrimental to the drainage of Lake Manor Estates or to property values or safety of any real property or improvements in Lake Manor Estates.
5. Satellite Dishes, Antenna and Aerials: Satellite dishes less than 18 inches, antenna, aerials or any other similar electronic equipment or device of any kind may be installed or maintained on the Residential Property so long as the same are not capable of being viewed from a public road, unless with the permission of the Architectural Review Committee.
6. Garbage, Refuse, Storage of Materials and Fuels: No garbage, trash, refuse or rubbish may be deposited, dumped or kept on any part of the Lots or Common Area except in closed containers, dumpsters or other garbage collection facilities deemed suitable by the Board (the "Containers"). The Containers located on Residential Property will be kept in such a manner so the same may not be viewed from a public road, except that they can be placed at the front of a Lot for pick-up at the times and in accordance with the requirements of the garbage removal service or appropriate governmental agency providing the service, as the case may be, for the Residential Property. No building materials (except during the time of construction) and no unlicensed/inoperable vehicles may be stored outside of a Residence at any time. Storage of firewood shall be restricted to the rear yard and be well screened as not to cause an eyesore to adjoining Lot Owners. Propane tanks shall be buried.
7. Fences: No chain link or wooden fences are permitted on any lot. Aluminum and/or vinyl fencing is only allowed if reviewed and approved in writing by the architectural review committee. No dog runs allowed.
8. Machinery and Equipment: No machinery or equipment of any kind shall be placed, operated, or maintained upon or adjacent to any lot within the properties except such machinery or equipment that is usual and customary in connection with the development, maintenance, or construction of a residence, appurtenant structures, or other improvements within the properties.
9. Restriction of Further Subdivision: No Lot within the properties shall be further subdivided or separated into smaller lots or parcels by any owner, and no portion less than all of any such Lot shall be conveyed or transferred by any owner. This provision shall not, in any way, limit Declarant from subdividing or separating into smaller lots or parcels any property not yet platted or subdivided into Lots owned by Declarant. The provision of this section shall not apply to the division of any Lot between two adjoining Lots that shall then become a part of the adjoining Lot. Any number of Lots may be combined to form a larger Lot.
10. Burning: It shall be the responsibility of each property owner and tenant to prevent the development of any unclean, unsightly, or unkempt conditions of buildings or grounds on such property. No outside burning of wood, leaves, trash, garbage, or other refuse shall be permitted on any property with a single family residence fully constructed on it.
11. Utility Service: No lines, wires, or other devices for the communication or transmission of electric current or power, including telephone, television, or radio signal, shall be erected, placed, or maintained anywhere in or upon any property within the properties unless the same shall be contained in conduits or cables installed and maintained underground or concealed in, under or on buildings or other structures approved by the Architectural Review Committee. No provision hereof shall be deemed to forbid the erection of temporary power or telephone structures incident to the construction of buildings or structures approved by the Architectural Review Committee or prevent or preclude the relocation of any existing facilities by the appropriate utility company.
12. Improvements and Alterations: No improvements, alterations, repairs, excavations, or other work which in any way alters the exterior appearance of any property within the properties or the improvements located from its natural or improved state existing on the date such property was first conveyed in fee simple to the Declarant, shall be made or done without the prior approval of the Architectural Review Committee, except as otherwise expressly provided in this Declaration. No building, fence, wall, residence, or other structure shall be commenced, erected, maintained, improved, altered, made or done without the prior written approval of the Architectural Review Committee or any committee established by the Architectural Review Committee for that purpose. Pursuant to its rulemaking power, the Architectural Review Committee shall have the right to refuse to approve any plans or specifications or grading plans, which are not suitable or desirable in its opinion, for aesthetic or other reasons, and in so passing upon such plans, specifications and grading plans, and without any limitation of the foregoing, it shall have the right to take into consideration the suitability of the proposed building or structure, and of the materials of which it is to be built, the site upon which it is proposed to erect the same, and the harmony thereof with the surrounding and the adjacent or neighboring property. All subsequent alterations, including exterior color scheme, shall be subject to the prior approval of the Architectural Review Committee. No changes or deviations in or from such plans and specifications once approved shall be made without the prior written approval of the Architectural Review Committee. All decisions of the Architectural Review Committee shall be final, and no Lot Owner or other parties shall have recourse against the Architectural Review Committee for its refusal to approve any such plans and specifications or plot plan, including lawn area and landscaping. Any decorative lawn ornaments or statues must be approved by the Architectural Review Committee.
13. Easements: No Lot Owner, other than the Declarant, shall have the right to grant any private ingress/egress easements to other Lot Owners or Lots, to other entities, or as a means of ingress or egress to land outside of Lake Manor Estates, provided however that this restriction shall not be construed in any way to restrict access by public servants for public health and safety purposes or access to Declarant’s other properties.
14. Cutting of Trees: No owner shall clear cut timber or trees off of a lot without the approval of the Architectural Review Committee. Diseased, rotted, or significantly damaged trees shall be excepted from this provision.
15. Right of Entry: During reasonable hours, any member of the Architectural Review Committee, or any authorized representative of the Architectural Review Committee, shall have the right to enter upon and inspect any Lot within the properties and the improvements thereon, except for the interior portions of any residence or other structure, for the purpose of ascertaining whether or not the provisions of Declaration have been or are being complied with, and such persons shall not be deemed guilty of trespass by reason of such entry.
16. Uniform Fixtures, Etc.: All exterior lighting fixtures and signs identifying name and address must be uniform throughout the Residential Property. Lot Owners are responsible for keeping yard lighting in operable condition. The Committee must establish and make available plans, specifications, or manufacturer's instructions in connection with such lighting fixtures, mailboxes and signs. The only signs permitted to be located on the exterior of a Lot are: customary “For Sale” and realtor signs advising that the property is for sale, and signs of no more than six (6) square feet identifying any contractor doing work on the Lot. All homeowners are required to purchase and use the Lake Manor Estates mailbox so they are uniform throughout the neighborhood and no other mailboxes may be used.
17. Restrictions on Lease of Residential Property: No owner may rent his or her Lot unless the same is approved by the Association. All rental and lease agreements (referred to as the "Lease Agreements") between an owner and a tenant or lessee of the owner's Lot and/or Residence must be in writing and provide that the Lease Agreement is subject to all the terms and provisions of the Lake Manor Estates Documents, and are subject to approval by the Association. No Lot or residence may be used as a “time share.”
18. Signs: No signs or billboards shall be allowed on any Lot, except for (i) “For Sale” signs of usual size and shape and (ii) signs of general contractors no larger than six (6) square feet and only while a dwelling is under construction.
19. Parking: No commercial vehicles, recreational vehicles, or trailers of any kind will be allowed to park or be parked at any time on a Lot or in a platted right-of-way unless it is a commercial vehicle in the process of being loaded or unloaded, and only for a period of time as is reasonably necessary to accomplish those purposes. No inoperable vehicles or watercraft may be parked except in a garage. For purposes of this Declaration, a commercial vehicle is any truck which, because of its size, weight, or sign affixed to it, painted or exhibited on it, is so designated from time to time, by the Association; provided, however, that any truck with more than two axles or larger than one-quarter ton will be deemed a commercial vehicle.
20. Maintenance of Exterior and Yard: The exterior of each Residence will at all times be maintained and kept so that it presents a freshly painted or stained "like new" appearance. Each owner must keep his or her Lot free of trash, weeds, and other unsightly material, must keep his or her Lot at all times in a neat and attractive condition, and must maintain all lawn, landscape areas and yard lighting in a sightly manner and operable condition. If an owner fails to maintain the exterior of his or her Residence and his or her yard as above provided in this paragraph, the Association, after written notice to owner and approval by a majority of the Directors of the Association, has the right to enter on the Lot to correct, repair, restore, paint, mow, trim and maintain any of the Residences and Lots. All costs related to the correction, repair, work or restoration, including attorney's fees, will become a Special Assessment against the Lot. Further, each Lot Owner shall keep this property free from tall grass, undergrowth, dead trees, trash, and rubbish. Each Lot Owner shall be responsible for seeding, mowing, and maintaining that portion of land between each Lot line and the pavement of the street. Each owner of a Lot abutting the lake shall maintain a pleasing appearance, proper contour of the lake bank and prevent erosion.
21. Watercraft. No powered watercraft shall be allowed on the lake, except those powered by electric motors. The speed of powered watercraft is limited to 10 miles per hour on the lake.
22. Docks and Piers. No docks or piers may be constructed into the waters of the lake without approval of the Architectural Committee. No dock or pier may extend more than 20 feet into the lake.
23. Association Approval: Except as otherwise provided in this Declaration, neither the Board nor the Architectural Review Committee will be deemed to have approved any request unless the approval is granted in writing and signed by an officer of the Association.
24. No Implied Waiver: The failure of the Board to object to an Owner's or other party's failure to comply with the covenants or restrictions contained in this Declaration or in other Lake Manor Estates (including the Rules and Regulations) now or promulgated later will in no event be deemed a waiver by the Board or of any other party having an interest of its right to object to it and to seek compliance in accordance with the provisions of such documents.
C. Disputes as to Use. In the event there is any dispute as to whether the use of the Residential Property or the Common Area is subject to the provisions of this Declaration or complies with the covenants and restrictions contained in the Declaration (including any Addendum to it), the dispute will be referred to the Board, and a determination rendered by the Board with respect to the dispute will be final and binding on all concerned parties. However, any use by Declarant of the Residential Property or the Common Area will be deemed a use which complies with the Declaration and will not be subject to a determination to the contrary by the Board.
D. Conveyance of Common Areas. At such time as title to the Common Areas, or any portions of it, are vested in the Association, the Common Areas and the improvements on it may not be abandoned, partitioned, subdivided, alienated, released, transferred, hypothecated, or otherwise encumbered without the prior written approval of three-quarters (3/4) of the members of the Association. At the time of conveyance of the Common Areas to the Association, Declarant shall convey title to the Common Areas to the Association by special warranty deed, and all real estate taxes shall be prorated as of the date of conveyance.
ARTICLE V
OBLIGATION TO EXPEND ASSOCIATION MONIES AND PAY EXPENSES
In order to fulfill the covenants and conditions contained in this Declaration and in order to maintain and operate the Common Areas and the improvements, lines and facilities now or later made the subject of this Declaration for the recreation, use, safety, welfare and benefit of the Owners, their families, guests, invitees and lessees, and to otherwise enable the Association to comply with the terms and provisions and obligations imposed in this Declaration, there is imposed on each Lot and the improvements on it and the Owners the affirmative obligation to pay Association Expenses set forth in this Declaration. There also is imposed on the Association the affirmative obligation to assess and collect Assessments equal to the Association Expenses and to spend those amounts necessary to meet Association Expenses. Such Assessments may be collected in any manner allowed by law and shall constitute a lien against each Lot as may be allowed by provisions of applicable law. "Association Expenses" are as defined in Article V, Section A in this Declaration.
A. Association Expenses. Association Expenses include:
1. Taxes: Any taxes levied on the Common Area by any taxing authority, including all taxes, charges, assessments and impositions and liens for public improvements, special charges and assessments, and in general, all taxes and tax liens which may be assessed against the Common Areas and against all personal property and improvements which are not or which later may be placed, including any interest, penalties and other charges which may accrue on the taxes.
2. Utility Expenses: All expenses levied for utilities providing services for the Front Entrance and Common Areas, whether supplied by a private or public firm, including, without limitation, all charges for water, gas, electricity, telephone, sewer, landscaping and any other type of utility or any other type of service charge.
3. Insurance: The premiums on the policies of insurance which the Association in its sole discretion determines to obtain; provided, however, that the coverage of the insurance will include the following:
a. Property insurance in an amount equal to the then-current full replacement cost (exclusive of land, foundation, excavation and other items normally excluded from the coverage) of the improvements on the Common Area.
b. A comprehensive policy of public liability insurance insuring the Association with limits of not less than $1,000,000.00 covering all claims for personal injury and/or property damage (property damage coverage may be limited to $500,000.00, notwithstanding the above) arising out of a single occurrence, the coverage to include protection against water damage liability, liability for non-owned and hired automobiles, liability for property of others, and any other risks as will customarily be covered with respect to areas similar to the Common Areas in construction, location and use, and including flood hazard insurance for the Common Areas.
c. Provided it is both available and affordable, as determined by the Association in its sound discretion, fidelity coverage will be purchased for the purpose of protecting against dishonest acts on the part of officers, the Board, and employees of the Association, and all others responsible for handling Association funds.
d. Any other forms of insurance and coverage as the Association determined to be required or beneficial for the protection of the Association or preservation of the Common Areas or in the best interest of Lake Manor Estates.
4. Common Area Expenses. The expenses of operating, maintaining and repairing the Common Area will be included by the Association as part of the Association Expenses in the Budget and be computed as part of Association Expenses to be assessed by the Association, as provided below, against the Owners of the Lots. Expenses will include, but not be limited to, the establishment and maintenance of the Common Areas, regardless of whether the Common Areas are utilized by an Owner or the occupants of an Owner’s Lot (“Common Area Expenses”).
B. Collection of Assessments.
1. Lien for Payment of Assessments and Subordination of Lien to First and Second Mortgages. There shall be continuing lien upon each of the Lots herein, in order to secure the payment of the Assessments (including interest, costs of collection and reasonable attorney’s fees) provided under this Declaration, but such lien shall be subject to and subordinate to any first and second deeds for trust placed on the Lot at any time prior to perfection of the lien by filing in the Clerk’s Office of the Circuit Court of the County of Bedford a verified Memorandum of Lien in accordance with §55-516 of the Code of Virginia. After the lien is perfected, it shall have priority over all subsequent liens and encumbrances, except as set forth in §55-516 of the Code of Virginia. A statement from the Association showing the balance due on any Assessment shall be prima facie proof of the current Assessment balance due and delinquency, if any, due on a particular Lot. In addition to the foregoing, Assessments may be collected by any means allowable under the laws of the Commonwealth of Virginia.
ARTICLE VI
ARCHITECTURAL REVIEW COMMITTEE
1. Organization. The Association will establish an Architectural Review Committee (the “Committee”) made up of three members, all of whom shall initially be appointed by Declarant and who may be removed by Declarant at any time.
2. Powers. Except for Residences and improvements constructed by or for the Declarant, the Committee is responsible for approving or disapproving all building and landscaping plans and specifications for any improvements to or landscaping upon any Lots, and for approving and disapproving all other requests required by the Lake Manor Estates Documents to be ruled upon by the Committee. The Committee may look to and approve or disapprove the methods of construction, site plans, ingress/egress, quality, and suitability of materials, location of improvements, reputation of contractors, workmanship, adherence to good principals of design and architecture, and whether or not the design is in keeping with traditional, recognized styles of design, and any other matters deemed important by the Committee to its determination.
3. Adherence to Plans. All structures, alterations, or additions must be constructed only in accordance with approved plans and specifications.
4. Subsequent Alterations. Any alterations, additions, or other improvements to any structure or landscaping plan, including painting or staining of structures other than in the original colors, must be approved by the Architectural Review Committee.
5. All Decisions Final. Decisions of the Architectural Review Committee are final and not subject to review. Approval or disapproval of any plans or other requests shall be in the sole discretion of the Committee based on aesthetic or other reasons it deems appropriate which reasons need not be stated. Approval in any case or circumstance gives no rights to approval in a case or circumstance deemed similar by the applicant.
6. Method of Approval or Disapproval. All requests for approval or disapproval must be made in writing and shall be accompanied by at least one (1) copy of proposed plans and specifications as the case may be. The Committee need not consider the application until it is in receipt of all plans and specifications reasonably required by it to make a decision. The Committee shall have ten (10) days from receipt of the application in which to request additional materials. The Committee shall have thirty (30) days from its receipt of all such required materials in which to render its decision. Such decisions shall be in writing. If the Committee fails to render a written approval or disapproval within the said thirty (30) days, such application shall be deemed approved. The Committee shall establish rules and procedures consistent herewith to implement the provisions hereof.
7. Composition After Conveyance of Common Areas by Declarant. After the end of Declarant’s control of the Association, the Association may elect the three (3) members of the Committee who shall serve at the pleasure of the Board.
ARTICLE VII
ASSOCIATION
1. Membership. Every Owner of a Lot shall be a Member of the Association. Declarant shall be a Member of the Association as set forth in this Declaration and in the Articles of Incorporation and Bylaws of the Association as long as Declarant owns any Lot or parcel in Lake Manor Estates. Membership in the Association shall be appurtenant to, and may not be separated or alienated from, ownership of Lots. The Association shall not discriminate on the basis of race, creed or sex in its membership.
2. Voting Rights. The Association shall have the following two classes of voting membership:
a. Class A. Class A Membership shall be all Owners of Lots with the exception of the Class B Member. Class A Members shall be entitled to one (1) vote for each Lot owned by said Class A Member. In the event that more than one person or entity holds such interest in Lot, all such persons or entities shall be Members. The vote for such Lot shall be exercised as they among themselves determine, but in no event shall more than one vote be cast with respect to any Lot.
b. Class B. The Class B Member shall be the Declarant. The Class B Member shall be entitled to three (3) votes for each of the residential dwelling Lots which Declarant has not transferred to a Class A Member in the form of a Lot. Declarant’s Class B Membership shall terminate on the date on which Declarant has transferred to Class A Members a total of 75% of the residential dwelling Lots or Lots. Declarant may terminate its Class B Membership at any time by filing with the Association and in the Clerk’s Office of the Circuit Court of the County of Bedford, Virginia, a written certificate terminating Declarant’s interest in Lake Manor Estates as Class B Member. At such time as Declarant’s Class B Membership terminates, Declarant shall become a Class A Member to the extent, and for the period during which Declarant owns any Lot in Lake Manor Estates.
3. Powers and Duties of the Association. The powers and duties of the Association shall be those set forth in this Declaration and the Articles of Incorporation and Bylaws and/or Rules and Regulations of the Association, as the same may be amended from time to time.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
1. Amendment. The Declarant reserves the right to change and modify the subdivision plan of Lake Manor Estates by eliminating, combining, or changing the size and shape of any unsold Lot shown thereof, including any building setback, or dwelling area requirement or to open, close or relocate new streets or undedicated streets, including the right to convert Lots into streets. The Declarant also reserve the right to grant variances for these restrictions where in its sole discretion a hardship will be caused by compliance herein. These rights shall terminate and be of no effect when Declarant or its assigns does not own a Lot in Lake Manor Estates subdivision. As long as Declarant owns one or more lots, the Declarant or the Architectural Review Committee may enforce or amend these restrictions and reservations. At and after such time as the Declarant does not own any such Lot, or if Declarant gives up its rights as Declarant in writing, these restrictions may be amended or terminated only by the written consent of the Owners of at least 66% of the Lots in Lake Manor Estates, duly recorded in the Clerk’s office of the Circuit Court of Bedford County, Virginia.
2. Reservation of Easements. There are reserved perpetual, alienable, and reasonable easements within the Committed Property and the right on, over, and under the ground to erect, maintain and use electric and telephone poles, wires, cables, conduits, sewers, water mains and other public conveniences or utilities, on in or over the rear and/or front 20 feet of each lot and 15 feet along the sides of each lot within the development. There is further reserved with in the above-described real property along the front, rear, and side lines of all Lots in the Lake Manor Estates the right to maintain and use drainage easements 15 feet in width as the same are necessary for the proper flow and discharge of water from the streets in the aforesaid subdivision, and as the same are required from time to time by the Virginia Department of Transportation.
3. Applicable Law. This Declaration shall be interpreted according to the laws of the State of Virginia.
4. Conflict With Other Documents. To the extent this Declaration conflicts with any other Lake Manor Estates Documents, including the Association Articles and Bylaws, the Articles shall rule over the Declaration and Bylaws and the Declaration shall rule over the Bylaws and all other documents.
LAKE MANOR ESTATES OWNERS ASSOCIATION, INC. BYLAWS
ARTICLE 1: General Provisions
Section 1.1. Governed Property. These Bylaws of the Lake Manor Estates Owners Association, Inc. (“Association”) provide for the governance of the Lake Manor Estates, (hereinafter the “Development” or “Lake Manor Estates”), located in Bedford County, Virginia, and more particularly described in the Declaration.
Section 1.2. Office and Mailing Address. The office of the Association and the Board of Directors of the Association shall be located at the Property or at such other place as may be designated from time to time by the Board of Directors.
Section 1.3. Definitions. Terms used herein without definition shall have the meanings specified for such terms in the Declaration of Covenants, Conditions, Restrictions and Easements for Lake Manor Estates (“Declaration”), if not otherwise defined herein. The following terms have the following meanings:
1.3.1 “Association” means the incorporated, non-profit membership corporation of all the Lot Owners owning Lots and Lots in the Lake Manor Estates as listed in Section 1.1 and Exhibit A attached hereto.
1.3.2 “Declarant Control Period” or “Developer Control Period” means the period prior to the earlier of (i) the date Lots or Lots to which three-fourths or more of the Lots have been conveyed to Lot Owners other than the Declarant, or (ii) the date specified in a notice from the Declarant to the Lot Owners that the Declarant is turning over control of the Association to the Lot Owners other than the Declarant.
1.3.3 “Limited Assessment” means expenses separately assessed against one or more but less than all the Lot Owners generally in accordance with the use and/or expense of the services provided.
1.3.4. “Lot” means each separate numbered lot shown on the plat entitled “
1.3.5 “Majority of the Lot Owners” means those Lot Owners owning Lots to which more than fifty percent (50%) of the votes belong that are actually voted in person or by proxy at a duly convened meeting at which a quorum is present.
1.3.6 “Officer” means any person holding office pursuant to Article 4 of the Bylaws.
ARTICLE 2: ASSOCIATION
Section 2.1. Composition. The Association shall consist of all the Lot Owners for properties or homes or commercial Lots located on the properties listed in Section 1.1 and Exhibit A attached hereto. The name of the Association shall be Lake Manor Estates Owners Association, Inc. (“Association”). For all purposes the Association shall act merely as an agent for the Lot Owners as a group. The Association shall have the responsibility of administering the Lake Manor Estates community which consists of the properties listed in Section 1.1 and Exhibit A attached, establishing the means and methods of collecting assessments and charges, arranging for the management of Lake Manor Estates and performing all of the other acts that may be required or permitted to be performed by the Association by the Declaration. The foregoing responsibilities shall be performed by the Board of Directors or Managing Agent as more particularly set forth in Article 3 of these Bylaws.
Section 2.2. Annual Meetings. The annual meetings of the Association shall be held once a year at least seventy-five (75) days before the beginning of each fiscal year on such date other than a Saturday, Sunday or legal holiday as may be established by the Board of Directors upon notice as required by Section 2.5. At such annual meetings, members of the Board of Directors shall be elected by ballot of the Lot Owners in accordance with the requirements of Section 3.4 of these Bylaws. During the Declarant Control Period, the Declarant shall be entitled to designate members of the Board of Directors not elected pursuant to Section 2.4.
Section 2.3. Place of Meetings. Meetings of the Association shall be held at the principal office of the Association or at such other suitable place convenient to the Lot Owners as may be designated by the Board of Directors.
Section 2.4. Special Meetings.
(a) The President shall call a special meeting of the Association if so directed by resolution of the Board of Directors or, after the termination of the Declarant Control Period, upon a petition signed and presented to the Secretary by Lot Owners of not less than twenty-five percent of the Lots. The notice of any special meeting shall state the time, place and purpose thereof. No business shall be transacted at a special meeting except as stated in the notice.
(b) Not later than the termination of the Declarant Control Period, a special meeting of the Association shall be held at which a majority of the members of the Board of Directors shall be elected by the Lot Owners and one of the Board of Directors shall be the Declarant. If such election is held prior to the time required by this section, the members of the Board of Directors elected at such election shall not take office until the earlier of the time such election is required to be held or resignation of a director appointed by the Declarant without appointment of a replacement within ten days. The elected members of the Board of Directors shall assume office in the order of the highest number of votes received. Any remaining members of the Board of Directors designated by the Declarant shall continue to serve until their terms expire; provided, however, that no more than two such directors may serve during the first year after the special meeting and no more than one such director may serve during the second year after the special meeting.
Section 2.5. Notice of Meetings. The Secretary shall give to each Lot Owner a notice of each annual or regularly scheduled meeting of the Lot Owners at least twenty-one days prior to such meeting stating the time, place and purpose thereof. The Secretary shall give to each Lot Owner notice of any special or other meeting of the Lot Owner at least seven days prior to such meeting stating the time, place, and purpose thereof. The giving of notice in the manner provided in this Section and Section 11.1 of the Bylaws shall be considered service of notice.
Section 2.6. Adjournment of Meetings. If at any meeting of the Association a quorum is not present, Lot Owners of a majority of the Percentage Interests who are present at such meeting in person or by proxy may adjourn the meeting to a time not less than forty-eight hours after the time the original meeting was called.
Section 2.7. Order of Business. The order of business at all meetings of the Association shall be as follows:
(a) roll call (proof of quorum);
(b) proof of notice of meeting;
(c) reading of minutes of preceding meeting;
(d) reports of officers;
(e) report of Board of Directors;
(f) reports of committees;
(g) election or appointment of inspectors of election (when so required);
(h) election of members of the Board of Directors (when so required);
(i) unfinished business; and
(j) new business.
Section 2.8. Title to Lots and Lots. Title to a Lot may be taken in the name of one or more Persons, in any manner permitted by law. The Association may purchase, acquire, hold and transfer full legal title to one or more Lots or Lots in Lake Manor Estates in its own name.
Section 2.9. Voting.
(a) Voting at all meetings of the Association shall be on a percentage basis with each Lot entitled to one vote. Where the ownership of a Lot is in more than one Person or in the name of a corporation, partnership, trust, or other legal entity owning the Lot, the Person who shall be entitled to cast the vote for such Lot shall be the Person named in a certificate executed by all of the owners of such Lot and filed with the Secretary or, in the absence of such named person from the meeting, the person who shall be entitled to cast the vote for such Lot shall be a person owning an interest in such Lot who is present. If more than one person owning such Lot is present, then such vote shall be cast only in accordance with their unanimous agreement. Such certificate shall be valid until revoked by a subsequent certificate similarly executed.
(b) Except where a greater number is required by the Declaration or these Bylaws, a majority of the Lot Owners present in person or by proxy is required to adopt decisions at any meeting of the Association. If the Declarant owns or holds title to one or more Lots or Lots, the Declarant shall have the right at any meeting of the Association to cast the votes to which such Lots or Lots are entitled.
(c) No Lot Owner may vote at any meeting of the Association or be elected to or serve on the Board of Directors if payment of any assessment(s) or dues on his/her Lot is delinquent more than thirty days and the amount necessary to bring his/her account current has not been paid at the time of such meeting or election. There shall be no cumulative voting.
Section 2.10. Proxies. A vote may be cast in person or by proxy. Such proxy may be granted by any Lot Owner in favor of only another Lot Owner, the Secretary of the Association, the Declarant or his/her Mortgagee, or in the case of a non-resident Lot Owner, the lessee of such Lot Owner's Lot, or his/her attorney or management agent. Proxies shall be duly executed in writing, shall be witnessed, shall be valid only for the particular meeting designated therein and must be filed with the Secretary before the appointed time of the meeting. Such proxy shall be deemed revoked only upon actual receipt by the person presiding over the meeting of notice of revocation from any of the persons owning such Lot no later than the start of the meeting.
Section 2.11. Quorum. Except as otherwise provided in these Bylaws, the presence in person or by proxy of twenty-five percent or more of the Lot Owner(s) shall constitute a quorum at all meetings of the Association.
Section 2.12. Conduct of Meetings. The President shall preside over all meetings of the Association and the Secretary shall keep the minutes of the meeting and record in a minute book all resolutions adopted at the meeting, as well as a record of all transactions occurring thereat. The President may appoint a person to serve as parliamentarian at any meeting of the Association. The then current edition of Robert's Rules of Order shall govern the conduct of all meetings of the Association when not in conflict with the Declaration, these Bylaws, past practice of the Association, or other rules adopted by the Association for governing its meetings. All votes shall be tallied by tellers appointed by the President or other officer presiding over the meeting.
ARTICLE 3: BOARD OF DIRECTORS
Section 3.1. Powers and Duties. The Board of Directors shall have all of the powers and duties necessary for the administration of the affairs of the Association and may do all such acts and things as are required by the Declaration or by these Bylaws to be exercised and done by the Association. The Board of Directors shall have the power from time to time to adopt any Rules and Regulations deemed necessary for the benefit and enjoyment of the development; provided, however, that such Rules and Regulations shall not be in conflict with the Declaration or these Bylaws. The Board of Directors shall delegate to one of its members or to a person employed for such purpose the authority to act on behalf of the Board of Directors on such matters relating to the duties of the Managing Agent (as defined in Section 3.3 hereof), if any, which may arise between meetings of the Board of Directors as the Board of Directors deems appropriate. In addition to the duties imposed by these Bylaws or by any resolution of the Association that may hereafter be adopted, the Board of Directors shall on behalf of the Association:
(a) Prepare and adopt an annual budget, in which there shall be expressed the assessments of each Lot Owner to defray the costs and expenses of operating the Association and for maintaining common areas, open spaces, and other assets of the Association.
(b) Make assessments against Lot Owners to defray the costs and expenses of the Association, and establish the means and methods of collecting such assessments from the Lot Owners.
(c) Provide for the operation, care, upkeep and maintenance of all of the Property and services of the Association.
(d) Designate, hire and dismiss the personnel necessary for the maintenance, operation, repair and replacement of Association properties and assets and to provide services for the same and provide for the compensation of such personnel in the performance of their duties.
(e) Collect the assessments against the Lot Owners, deposit the proceeds thereof in bank depositories designated by the Board of Directors and use the proceeds to carry out the obligations of the Association.
(f) Make and amend the Rules and Regulations of the Association.
(g) Open bank account(s) on behalf of the Association and designate the signatories thereon.
(h) Enforce by legal means the provisions of the Declaration, these Bylaws and the Rules and Regulations, act on behalf of the Lot Owners with respect to all matters arising out of any eminent domain proceedings, and notify the Lot Owners of any litigation against the Association involving a claim in excess of ten percent (10%) of the amount of the annual budget.
(i) Obtain and carry insurance against casualties and liabilities, as provided in Article 6 of these Bylaws, pay the premiums therefor and adjust and settle any claims thereunder.
(j) Pay the cost of all authorized services rendered to the Association and not billed to Lot Owners of individual Lots or Lots or otherwise provided for in Section 5.1 and 5.2 of these Bylaws.
(k) Keep books with detailed accounts in chronological order of the receipts and expenditures affecting the Association, and the administration of Lake Manor Estates. Such books and vouchers accrediting the entries therein shall be available for examination by the Lot Owners, their attorneys, accountants and authorized agents during general business hours on business days at the times and in the manner set and announced by the Board of Directors for the general knowledge of the Lot Owners. All books and records shall be kept in accordance with generally accepted accounting practices and shall be audited once each year by an independent auditor retained by the Board of Directors.
(l) Borrow money on behalf of the Association when required in connection with any specified expense relating to the operation, care, upkeep and maintenance of Association assets; provided, however, that the consent of at least two-thirds in number of all Lot Owners, obtained either in writing or at a meeting duly called and held for such purpose in accordance with the provisions of these Bylaws, shall be required to borrow any sum in excess of Ten Thousand Dollars ($10,000).
(m) Acquire, hold and dispose of Lots and Lots or land and mortgage the same if such expenditures and hypothecations are included in the budget adopted by the Association.
(n) Do such other things and acts not inconsistent with the law, the Declaration or these Bylaws which the Board of Directors may be authorized to do by a resolution of the Association.
Section 3.2. Managing Agent. The Board of Directors may employ for the Association a "Managing Agent" at a compensation to be established by the Board of Directors.
(a) Requirements. The Managing Agent shall be a person or persons possessing competence in the skills necessary to proper management of the Association.
(b) Duties. The Managing Agent shall perform such duties and services as the Board of Directors shall direct. The Managing Agent shall perform the obligations, duties and services relating to the management of the Association in compliance with the provisions of these Bylaws.
(c) Standards. The Board of Directors shall impose appropriate standards of performance upon the Managing Agent. Unless the Managing Agent is instructed otherwise by the Board of Directors:
(1) the cash method of accounting shall be employed and expenses required by these Bylaws to be charged to more than one but less than all Lot Owners shall be accounted for separately;
(2) two or more persons shall be responsible for handling cash to maintain adequate financial control procedures;
(3) cash accounts of the Association shall not be commingled with any other accounts;
(4) no remuneration shall be accepted by the Managing Agent from vendors, independent contractors or others providing goods or services to the Association whether in the form of commission, finders' fees, service fees or otherwise; and discounts received shall benefit the Association;
(5) any financial or other interest which the Managing Agent may have in any firm providing goods or services to the Association shall be disclosed promptly to the Board of Directors; and
(6) a monthly financial report shall be prepared for the Association containing:
(A) an Income Statement reflecting all income and expense activity for the preceding month on an accrual basis;
(B) an Account Activity Statement reflecting all receipt and disbursement activity for the preceding month on a cash basis;
(C) an Account Status Report reflecting the status of all accounts in an "actual" versus "projected" (budget) format;
(D) a Balance Sheet reflecting the financial condition of the Association on an unaudited basis;
(E) a Budget Report reflecting any actual or pending obligations which are in excess of budgeted amounts by an amount exceeding the operating reserves or ten percent of a major budget category (as distinct from a specific line item in an expended chart of accounts); and
(F) a Delinquency Report listing all Lot Owners who are delinquent in paying assessments and describing the status of any actions to collect such assessments.
(d) Limitations. The Board of Directors may employ a Managing Agent for a term not to exceed one year. Any contract with the Managing Agent must provide that it may be terminated, without payment of a termination fee, without cause on no more than ninety (90) days' written notice and with cause on no more than ten (10) days' written notice.
Section 3.3. Number and Terms of Office.
(a) Designated Members. The initial Board of Directors shall consist of no less than three (3) nor more than five (5) persons, all of whom shall be designated by the Declarant. The term of office of at least one of such persons shall expire at the third annual meeting; the term of office of up to two additional persons shall expire at the second annual meeting; and the term of office of any other persons shall expire at the first annual meeting. The term of each designee shall be fixed by the Declarant. At the special meeting required by Subsection 2.4(b), a number of the persons designated by the Declarant shall resign if necessary so that a majority of the members of the Board of Directors shall have been elected in accordance with Subsection 2.4(b). The persons elected shall serve for the remainder of the terms of office of the resigning members of the Board of Directors who such persons replace, or if no resignation was required, for the terms of office necessary so that the term of office of three members of the Board of Directors shall expire at each of the first three annual meetings after their election. The persons receiving the greatest vote shall be elected for the longest available terms. At the expiration of the terms of office of all members of the Board of Directors designated by the Declarant or elected at the special meeting held pursuant to Subsection 2.4(b), all successor directors shall be elected to serve for a term of three years.
(b) Elected Members. No later than the first annual meeting of the Association, the Board of Directors shall be composed of up to five persons, all of whom shall be Lot Owners, Mortgagees (or designees of Mortgagees) or designees of the Declarant. Except for resignation or removal, the members of the Board of Directors shall hold office until their respective successors shall have been elected by the Association.
Section 3.4. Election of Directors.
(a) Elections Committee. At least ninety (90) days prior to the special meeting required by Section 2.4(b) of these Bylaws and each annual meeting of the Association, the Board of Directors shall appoint an Elections Committee consisting of a member of the Board of Directors whose term is not then expiring and at least two other Lot Owners. The Elections Committee shall develop election procedures and administer such procedures as are approved by the Board of Directors.
(b) Nominations. Persons qualified to be directors may be nominated for election only by a nominating petition submitted to the Chairman of the Elections Committee at least thirty-five (35) days before the meeting at which the election is to be held. The nominating petition must be signed by Lot Owners representing at least three Lots or Lots and either signed by the nominee or accompanied by a document signed by the nominee indicating willingness to serve as a member of the Board of Directors; provided, however, that additional nominations may be made from the floor at the meeting at which the election is held for each vacancy on the Board of Directors for which no more than one person has been nominated by petition. The nominee must either be present and consent to the nomination or have indicated in writing the willingness to serve. This Subsection (b) does not apply to Persons appointed to the Board of Directors by the Declarant.
(c) Qualifications. No person shall be eligible for election as a member of the Board of Directors unless he is (alone or together with one or more other Persons) a Lot Owner. No Person shall be elected as a member of the Board or shall continue to serve as a member of the Board if he is more than sixty (60) days delinquent in his/her financial obligations to the Association and a lien has been filed against his/her Lot.
Section 3.5. Removal or Resignation of Directors. Except with respect to directors designated by Declarant, at any regular or special meeting duly called, any one or more of the member of the Board of Directors may be removed with or without cause by a Majority of the Lot Owners and a successor may then and there be elected to fill the vacancy thus created. Any director whose removal has been proposed by the Lot Owners shall be given at least seven days' notice of the time, place and purpose of the meeting and shall be given an opportunity to be heard at the meeting. A member of the Board of Directors may resign at any time and, except for a director designated by the Declarant, shall be deemed to have resigned upon disposition of his/her Lot, or if not in attendance at three consecutive regular meetings of the Board, unless the minutes reflect the Board's consent to such absence.
Section 3.6. Vacancies. Vacancies in the Board of Directors caused by any reason other than the removal of a director by a vote of the Association shall be filled by a vote of a majority of the remaining Directors at a special meeting of the Board of Directors held for such purposes promptly after the occurrence of any such vacancy, even though the directors present at such meeting may constitute less than a quorum. Each person selected shall be a member of the Board of Directors until a successor shall be elected at the next annual meeting of the Association. During the Declarant Control Period, the Declarant shall designate the successor to any member previously designated by the Declarant who resigns or is removed.
Section 3.7. Organizational Meeting. The first meeting of the Board of Directors following the annual meeting of the Association shall be held within thirty (30) days thereafter at such time and place as shall be fixed by the Association at the meeting at which such Board of Directors shall have been elected, and no notice shall be necessary to the newly elected members of the Board of Directors in order legally to constitute such meeting, providing a majority of the whole Board of Directors is present at the meeting.
Section 3.8. Regular Meetings. Regular meetings of the Board of Directors may be held at such time and place as shall be determined from time to time by a majority of the directors, but such meetings shall be held at least twice each fiscal year. Notice of regular meetings of the Board of Directors shall be given in writing to each director, by hand delivery, mail or fax, at least three business days prior to the day named for such meeting.
Section 3.9. Special Meetings. Special meetings of the Board of Directors may be called by the President on three days' notice to each director, given in writing or by telephone, which notice shall state the time, place and purpose of the meeting. Special meetings of the Board of Directors shall be called by the President or Secretary in like manner and on like notice on the written request of at least three directors.
Section 3.10. Waiver of Notice. Any director may at any time, in writing, waive notice of any meeting of the Board of Directors, and such waiver shall be deemed equivalent to the giving of such notice. Attendance by a Director, in person or by telephone communication, at any meeting of the Board of Directors shall constitute a waiver of notice by him of the time, place and purpose of such meeting. If all Directors are present at any meeting of the Board of Directors, no notice shall be required and any business may be transacted at such meeting.
Section 3.11. Quorum of Board of Directors. At all meetings of the Board of Directors a majority of the directors shall constitute a quorum for the transaction of business, and the votes of a majority of the directors present at a meeting at which a quorum is present shall constitute the decision of the Board of Directors. If at any meeting of the Board of Directors there shall be less than a quorum present, a majority of those present may adjourn the meeting from time to time. At any such adjourned meeting at which a quorum is present, any business which might have been transacted at the meeting originally called may be transacted without further notice. A member of the Board of Directors who participates in a meeting by means of telephone communications shall be deemed present at the meeting for all purposes.
Section 3.12. Fidelity Bonds. As required by Subsection 6.4(a) hereof, there shall be obtained fidelity bonds in an amount not less than one-half the total annual budget for the year (in such greater amounts as may be required by the Mortgagees) for all officers, directors and employees of the Lot Owners Association, including without limitation the Managing Agent handling or responsible for Association funds. The premiums on such bonds shall constitute Net Upkeep Expense.
Section 3.13. Compensation. No director shall receive any compensation from the Association for acting as such.
Section 3.14. Conduct of Meetings. The President shall preside over all meetings of the Board of Directors and the Secretary shall keep a minute book of the Board of Directors recording therein all resolutions adopted by the Board of Directors and a record of all transactions and proceedings occurring at such meetings. The then current edition of Robert's Rules of Order shall govern the conduct of the meetings of the Board of Directors when not in conflict with the Declaration, these Bylaws or the Condominium Act (if applicable).
Section 3.15. Action Without Meeting. Any action by the Board of Directors required or permitted to be taken at any meeting may be taken without a meeting if all of the members of the Board of Directors shall individually or collectively consent in writing to such action. Any such written consent shall be filed with the minutes of the proceedings of the Board of Directors.
Section 3.16. Liability of the Board of Directors, Officers, Lot Owners and Association.
The officers and members of the Board of Directors shall not be liable to the Association or to any Lot Owner for any mistake of judgment, negligence or otherwise, except for their own individual willful misconduct or bad faith. The Association shall indemnify and hold harmless each of the officers and directors from and against all contractual liability to other arising out of the contracts made by the officers or the Board of Directors on behalf of the Association unless any such contract shall have been made in bad faith or contrary to the provisions of the law, the Declaration, or these Bylaws, except to the extent that such liability is satisfied by directors and officers liability insurance. Officers and members of the Board of Directors shall have no personal liability with respect to any contract made by them in good faith and on behalf of the Association. The liability of any Lot Owners arising out of any contract made by the officers or Board of Directors, or out of the indemnification of the members of the Board of Directors or officers, or for damages as a result of injuries arising in connection with the Common Areas solely by virtue of his/her ownership of a Lot or for liabilities incurred by the Association, shall be limited to the total liability divided by the total number of Lots. Every agreement made by the officers, the Board of Directors, or the Managing Agent on behalf of the Association shall, if obtainable, provide that the officers, the members of the Board of Directors or the Managing Agent, as the case may be, are acting only as agents for the Association and shall have no personal liability thereunder (except as Lot Owners), and that each Lot Owner's liability thereunder shall be limited to the total liability thereunder divided by the total number of Lots. The Association shall indemnify any person who was or is a party or is threatened at be made a party to any threatened, pending or completed action, suit or proceeding by reason of the fact that he is or was a director or officer of the Association against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement by him in connection with such action, suit, or proceeding if he acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interest of the Association.
Section 3.17. Common or Interested Directors. Each member of the Board of Directors shall exercise his/her powers and duties in good faith and with a view to the interests of the Association. No contract or other transaction between the Association and any of its directors, or between the Association and any corporation, firm or association (including the Declarant) in which any of the directors of the Association are directors or officers or are pecuniarily or otherwise interested, is either void or voidable because any such director is present at the meeting of the Board of Directors or any committee thereof which authorizes or approves the contract or transaction, or because his/her vote is counted for such purpose, if any of the conditions specified in any of the following subsections exists:
(a) The fact of the common directorate or interest is disclosed or known to the Board of Directors or a majority thereof or noted in the minutes, and the Board of Directors authorizes, approves, or ratifies such contract or transaction in good faith by a vote sufficient for the purpose; or
(b) The fact of the common directorate or interest is disclosed or known to at least a Majority of the Lot Owners, and the Lot Owners approve or ratify the contract or transaction in good faith by a vote sufficient for the purpose; or
(c) The contract or transaction is commercially reasonable to the Association at the time it is authorized, ratified, approved or executed.
Any common or interested directors may be counted in determining the presence of a quorum of any meeting of the Board of Directors or committee thereof which authorizes, approves or ratifies any contract or transaction, and may vote thereof to authorize any contract or transaction with like force and effect as if such director where not such director or officer of such Association or not so interested.
Section 3.18. Board of Directors as Attorney-in-Fact. The Board of Directors is hereby irrevocably appointed as agent and attorney-in-fact for the Lot Owners of all of the Lots and Lots and for each of them, to manage, control and deal with the interests of such Lot Owners in the Common Areas of the development to permit the Board of Directors to fulfill all of its powers, rights, function and duties. The Board of Directors is hereby irrevocably appointed as agent and attorney-in-fact for each Lot Owner, each Mortgagee, other named insured and their beneficiaries and any other holder of a lien or other interest in the development or the property to adjust and settle all claims arising under insurance policies purchased by the Board of Directors and to execute and deliver release upon the payment of claims. The Board of Directors may grant and accept easements and licenses over the Common Areas.
Section 3.19. Covenants Authority.
(a) Purpose. The Board of Directors may act to assure that the development shall always be maintained in a manner: (1) providing for visual harmony and soundness of repair; (2) avoiding activities deleterious to the esthetic or property values of the development; (3) furthering the comfort of the Lot Owners, their guests and tenants; and (4) promoting the general welfare and safety of the development community.
(b) Powers. The Board of Directors shall regulate the design, appearance, use and maintenance of the Common Areas. The Board of Directors shall have the power to issue a cease and desist request to a Lot Owner, his/her guests, invitees, or lessees whose actions are inconsistent with the provisions of the law, the Declaration, the Rules and Regulations or resolutions of the Board of Directors (upon petition of any Lot Owner or upon its own motion). The Board of Directors shall from time to time, as required, provide interpretations of the Declaration, Rules and Regulations and resolutions pursuant to the intents, provisions and qualifications thereof when requested to do so by a Lot Owner or upon its own volition.
ARTICLE 4: OFFICERS
Section 4.1. Designation. The principal officers of the Association shall be the President, the Vice President, the Secretary and the Treasurer, all of whom shall be elected by the Board of Directors. The Board of Directors may appoint an assistant treasurer, an assistant secretary and such other officers as in its judgment may be necessary. Any other officers may, but need not, be Lot Owners or member of the Board of Directors. The office of the President and the office of the Secretary shall not be held by the same person.
Section 4.2. Election of Officers. The officers of the Association shall be elected annually by the Board of Directors at the organizational meeting of each new Board of Directors and shall hold office at the pleasure of the Board of Directors.
Section 4.3. Removal of Officers. Upon the affirmative vote of a majority of all members of the Board of Directors, any officer may be removed, either with or without cause, and a successor may be elected at any regular meeting of the Board of Directors or at any special meeting of the Board of Directors, called for such purpose.
Section 4.4. President. The President shall be the chief executive officer of the Association; preside at all meetings of the Association and of the Board of Directors; have general and active management of the business of the Association subject to the control of the Board of Directors; see that all orders and resolutions of the Board of Directors are carried into effect; and appoint committees from among the Lot Owners from time to time as the President may in his/her discretion decide is appropriate to assist in the conduct of the affairs of the Association.
Section 4.5. Vice President. The Vice President shall take the place of the President and perform the duties of the President whenever the President shall be absent or unable to act. If neither the President nor the Vice President is able to act, the Board of Directors shall appoint some other member of the Board of Directors to act in the place of the President, on an interim basis. The Vice President shall also perform such other duties as shall from time to time be imposed by the Board of Directors or by the President.
Section 4.6. Secretary. The Secretary shall keep the minutes of all meetings of the Lot Owners Association and of the Board of Directors; have charge of such books and papers as the Board of Directors may direct; give or cause to be given all notices required to be given by the Association; maintain a register setting forth the place to which all notices to Lot Owners and Mortgagees hereunder shall be delivered; and, in general, perform all the duties incident to the office of Secretary.
Section 4.7. Treasurer. The Treasurer shall (together with the Managing Agent) be responsible for Association funds and securities; keep full and accurate financial records and books of accounts showing all receipts and disbursements; prepare all required financial data; deposit all monies and other valuable effects in the name of the Board of Directors, the Lot Owners Association or the Managing Agent, in such depositories as may from time to time be designated by the Board of Directors; and, in general, perform all the duties incident to the office of Treasurer.
Section 4.8. Execution of Documents. All agreements, contracts, deeds, leases, checks and other instruments of the Association for aggregate expenditures or obligations in excess of Two Thousand Dollars ($2,000), and all checks drawn upon reserve accounts, shall be executed by any two persons designated by the Board of Directors. All such instruments for expenditures or obligations of Two Thousand Dollars ($2,000) or less, except from reserve accounts, may be executed by any one person designated by the Board of Directors.
Section 4.9. Compensation of Officers. No officer shall receive any compensation from the Association for acting as such officer.
ARTICLE 5: OPERATION OF THE PROPERTY
Section 5.1. Determination of Assessments Against Lot Owners.
(a) Fiscal Year. The fiscal year of the Association shall be January 1 through December 31 unless otherwise determined by the Board of Directors.
(b) Preparation and Approval of Budget.
(1) At least one hundred twenty (120) days before the beginning of each fiscal year, the Board of Directors shall adopt a budget for the Association containing an estimate of the total amount considered necessary to pay the cost of maintenance, management, operation, repair and replacement of the Common Areas, and those parts of any Lot which it is the responsibility of the Board of Directors to maintain, repair and replace, and the cost of wages, materials, insurance premiums, services, supplies and other expenses required by the Declaration, these Bylaws, or by a resolution of the Association, and which will require during the ensuing fiscal year for the administration, operation, maintenance and repair of the Property and the rendering to the Lot Owners of all related services.
(2) Such budget shall also include such reasonable amounts as the Board of Directors considers necessary to provide working capital, a general operating reserves for contingencies and replacements. At least sixty (60) days before the beginning of each fiscal year, the Board of Directors shall send to each Lot Owner a copy of the budget in a reasonably itemized form which sets forth the amount of the Assessment and any special assessment payable by each Lot Owner. Such budget shall constitute the basis for determining each Lot Owner's Assessment.
(3) Assessment and Payment. Subject to the provisions of Subsection 9.1(a) hereof, the total amount of the estimated funds required from assessments for the operation of the Association set forth in the budget adopted by the Board of Directors shall be assessed each Lot equally, and shall be lien against each Lot Owner's Lot as provided in Section 9.2 of these Bylaws. To the extent such expenses are not covered by the Assessment, such expenses shall be paid by a special assessment against each Lot equally, such assessment to be due within thirty (30) days of notice of the same. Within one hundred twenty (120) days after the end of each fiscal year, the Board of Directors shall supply to all Lot Owners, and to each Mortgagee requesting same, an itemized accounting of the Association’s expenditures for such fiscal year actually incurred and paid, together with a tabulation of the amounts collected pursuant to the budget adopted by the Board of Directors for such fiscal year, and showing the net amount over or short of the actual expenditures plus reserves. Any amount accumulated in excess of the amount required for actual expenses and reserves shall, at the discretion of the Board of Directors, be placed in reserve accounts, be placed in a special account to be expended solely for the general welfare of the Lot Owners. Any net shortage shall be assessed promptly against the each Lot equally and shall be payable within thirty (30) days of notice of the same.
(d) Reserves. The Board of Directors shall build up and maintain reasonable reserves for working capital. Expenditures not originally included in the annual budget which may become necessary during the year shall be charges first against such reserves. If the reserves are inadequate for any reason, including non-payment of any Lot Owner's assessments, the Board of Directors may at any time levy a further assessment, which shall be assessed against the Lots equally and which may be payable in a lump sum or in installments as the Board of Directors may determine. The Board of Directors shall serve notice of any such further assessment on Lot Owners by a statement in writing giving the amount and reasons therefore, and such further assessment shall, unless otherwise specified in the notice, be due within thirty (30) days of notice of the same. All Lot Owners so notified shall be obligated to pay the amount of such assessment. Such assessment shall be a lien as of the effective date as set forth in the preceding Subsection (c).
(e) Effect of Failure to Prepare or Adopt Budget. The failure or delay of the Board of Directors to prepare or adopt a budget for any fiscal year shall not constitute a waiver or release in any manner of a Lot Owner's obligation to pay his/her allocable share of the Net Upkeep Expense as herein provided.
(f) Accounts. All sums collected by the Board of Directors with respect to assessments against the Lot Owners or from any other source may be held in a single fund or account.
Section 5.2. Payment of Assessments. Each Lot Owner shall pay the amounts assessed by the Board of Directors pursuant to the provisions of Section 5.1. No Lot Owner may exempt himself/herself from liability for such assessments by waiver of the use or enjoyment of any of the Common Areas or by abandonment of his/her Lot. No Lot Owner shall be liable for the payment of any part of any amount assessed against his/her Lot subsequent to the date of recordation of a conveyance by him/her in fee of such Lot. Prior to or at the time of any such conveyance, all liens, unpaid charges and assessments shall be paid in full and discharged. The purchaser of a Lot shall be jointly and severally liable with the selling Lot Owner for all unpaid assessments against recordation, without prejudice to the purchaser's right to recover from the selling Lot Owner amounts paid by the purchaser therefore; provided, however, that any such purchaser shall be entitled to a statement setting forth the amount of the unpaid assessments prior to the selling Lot Owner within ten days following a written request therefore to the Board of Directors or Managing Agent and such purchaser shall not be liable for, nor shall the Lot conveyed be subject to a lien for, any unpaid assessments in excess of the amount therein set forth; and provided, further, that each Mortgagee who comes into possession of a Lot by virtue of foreclosure or by deed or assignment in lieu of foreclosure, or any purchaser at a foreclosure sale, shall take the Lot free of any claims for unpaid assessments or charges against such Lot which accrue prior to the time such Mortgagee comes into possession thereof, except for claims for a pro rate share of such assessments or charges to all Lots including the mortgaged Lot.
Section 5.3. Collection of Assessments. The Board of Directors, or the Managing Agent at the request of the Board of Directors, shall take prompt action to collect any assessments due from any Lot Owner which remain unpaid for more than thirty (30) days from the due date for payment thereof. Any assessment, or installment thereof, not paid within five days after due shall accrue a late charge in the amount of Ten Dollars ($10), or such other amount as may be established from time to time by the Board of Directors.
Section 5.4. Statement of Assessments. The Board of Directors shall promptly provide any Lot Owner, contract purchaser or Mortgagee so requesting the same in writing with a written statement of all unpaid assessments due from such Lot Owner. The Board of Directors may impose a reasonable charge for the preparation of such statement to cover the cost of preparation.
Section 5.5. Maintenance, Repair, Replacement and Other Expenses.
(a) By the Board of Directors. The Board of Directors shall be responsible for the maintenance, repair and replacement (unless, if in the opinion of not less than eighty percent of the Board of Directors such expense was necessitated by the negligence, misuse or neglect of a Lot Owner) of all of the Common Areas located inside or outside of the Lots or Lots, the cost of which shall be charged to all Lot Owners.
(b) By the Lot Owner.
(1) Each Lot Owner shall keep his/her Lot and its buildings, equipment, appliances and appurtenances in good order, condition and repair and in a clean and sanitary condition, and shall do all exterior redecoration, painting and varnishing which may at any time be necessary to maintain the good appearance and condition of his/her Lot. In addition, each Lot Owner shall be responsible for all damage to any other Lots or to the Common Areas resulting from his/her failure or negligence to make any of the repairs required by this Section. Each Lot Owner shall perform his/her responsibility in such manner as shall not unreasonably disturb or interfere with the other Lot Owners. Each Lot Owner shall promptly report to the Board of Directors or the Managing Agent any defect or need for repairs for which the Board of Directors is responsible.
(2) Any Lot Owner permitted by the Board of Directors to use a specific portion of the Common Areas for storage is responsible for the maintenance and care of such portion and shall use such portion in a safe and sanitary manner.
(c) Manner of Repair and Replacement. All repairs and replacements shall be subsequently similar to the original construction and installation and shall be of first-class quality, but may be done with contemporary building materials and equipment. The method of approving payment vouchers for all repairs and replacements shall be determined by the Board of Directors.
Section 5.6. Additions, Alteration or Improvements by Board of Directors. Except during the Declarant Control Period, whenever in the judgment of the Board of Directors the Common Areas shall require additions, alterations or improvements costing in excess of Ten Thousand Dollars ($10,000) during any period of twelve consecutive months, the making of such additions, alterations or improvements requires the prior approval of a Majority of the Lot Owners, and the Board of Directors shall assess all Lot Owners benefited for the cost thereof. Any additions, alterations or improvements costing Ten Thousand Dollars ($10,000) or less during any period of twelve consecutive months may be made by the Board of Directors without approval of the Lot Owners. The Ten Thousand Dollar ($10,000) limitation may be altered annually by the Board of Directors with a sixty day (60 day) notice to the Lot Owners. Notwithstanding the foregoing, if, in the opinion of not less than eighty percent of the members of the Board of Directors, such additions, alteration or improvements are exclusively or substantially exclusively for the benefit of the Lot Owners requesting the same, such requesting Lot Owners shall be assessed therefore in such proportion as they jointly approve or, if they are unable to agree thereon, in such proportion as may be determined by the Board of Directors.
ARTICLE 6: INSURANCE
Section 6.1. Authority to Purchase; Notice.
(a) Insurance policies relating to the Association shall be purchased by the Board of Directors. The Board of Directors, the Managing Agent and the Declarant shall not be liable for failure to obtain any coverages required by this Article 6 or for any loss or damage resulting from such failure if such failure is due to the unavailability of such coverages from reputable insurance companies, or if such coverages are so available only at demonstrably unreasonable costs. The Board of Directors shall promptly furnish to each Lot Owner written notice of the obtainment of, subsequent changes therein, or termination, of insurance coverages obtained on behalf of the Association.
(b) If possible each such policy shall provide that:
(1) The insurer waives any right to claim by way of subrogation against the Declarant, the Association, the Board of Directors, the Managing Agent or the Lot Owners, and their respective agents, employees, guests and, in the case of the Lot Owners, the members of their households;
(2) Such policy shall not be canceled, invalidated or suspended due to the conduct of any Lot Owner (including his/her invitees, agents and employees) or of any member, officer or employee of the Board of Directors or the Managing Agent without prior demand in writing that the Board of Directors or the Managing Agent cure the defect and neither shall have so cured such defect within sixty days after such demand;
(3) Such policy may not be canceled or substantially modified (including cancellation for non-payment of premium) without at least sixty days' prior written notice to the Board of Directors and the Managing Agent and, in the case of physical damage insurance, to all Mortgagees.
(c) The Declarant, so long as Declarant shall own any Lot, shall be protected by all such policies as a Lot Owner.
(d) All policies of insurance shall be written by reputable companies licensed to do business in the Commonwealth of Virginia.
Section 6.2. Physical Damage Insurance.
(a) The Board of Directors shall obtain and maintain a blanket, "all-risk" form policy of fire insurance with extended coverage covering the assets of the Association, the Board of Directors and all Lot Owners and their Mortgagees, as their interests may appear, in an amount equal to 100% of the then current replacement cost of the Common Areas (exclusive of items normally excluded from such coverage), with deduction for depreciation.
(b) Such policy shall also provide, if possible, a waiver of any right of the insurer to repair, rebuild or replace any damage or destruction, if a decision is made pursuant to these Bylaws not to do so.
Section 6.3. Liability Insurance. The Board of Directors shall obtain and maintain comprehensive general liability and property damage insurance in such limits as the Board of Directors may from time to time determine, insuring each member of the Board of Directors, the Managing Agent, each Lot Owner and the Declarant against any liability to the public or to the Lot Owners (and their invitees, agents and employees) arising out of, or incident to the ownership and/or use of the Common Areas.
Section 6.4. Other Insurance. The Board of Directors may obtain and maintain:
(a) adequate fidelity coverage to protect against dishonest acts on the part of officers, directors, trustees and employees of the Association, including the Managing Agent. Such fidelity bonds shall: (i) name the Association as an obligee; (ii) be written in an amount not less than one-half the total annual assessments for the year or the amount required by the Federal National Mortgage Association or the Federal Home Loan Mortgage Corporation or such similar entity, whichever is greatest; and (iii) contain waivers of any defense based upon the exclusion of persons who serve without compensation from any definition of "employee" or similar expression;
(b) if required by any governmental or quasi-governmental agency, including without limitation the Federal National Mortgage Association or the Federal Home Loan Mortgage Corporation, flood insurance in accordance with the then applicable regulations of such agency;
(c) workman's compensation insurance if and to the extent necessary to meet the requirements of law;
(d) such other insurance as the Board of Directors may determine or as may be requested from time to time by a Majority of the Lot Owners.
ARTICLE 7: COMPLIANCE AND DEFAULT
Section 7.1. Relief. Each Lot Owner shall be governed by, and shall comply with, all of the terms of these Bylaws and the Declaration as any of the same may be amended from time to time. In addition to the remedies provided by law, a default by a Lot Owner shall entitle the Association, acting through its Board of Directors or through the Managing Agent, to the following relief:
(a) Additional Liability. Each Lot Owner shall be liable for the expense of all maintenance, repair or replacement rendered necessary by his/her act, neglect or carelessness or the act, neglect or carelessness of any member of his/her family or his/her employees, agents, guests or licensees but only to the extent that such expense is not covered by the proceeds of insurance carried by the Board of Directors.
(b) Costs and Attorney's Fees. In any proceeding arising out of any alleged default by a Lot Owner, the prevailing party shall be entitled to recover the costs of such proceeding and such reasonable Attorney's Fees actually incurred as may be determined by the court.
(c) No Waiver of Rights. The failure of the Association, the Board of Directors or of a Lot Owner to enforce any right, provision, covenant or condition which may be granted by these Bylaws or the Declaration shall not constitute a waiver of the right of the Lot Owners Association, the Board of Directors or of a Lot Owner to enforce such right, provision, covenant or condition in the future. All rights, remedies and privileges granted to the Association, the Board of Directors or of a Lot Owner pursuant to any term, provision, covenant or condition shall be deemed to be cumulative and the exercise of any one or more thereof shall not be deemed to constitute an election of remedies, nor shall it preclude the party exercising the same from exercising such other privileges as may be granted to such by these Bylaws, the Declaration, or at law or in equity.
(d) Interest. In the event of a default by any Lot Owner in paying any sum assessed against his/her Lot which continues for a period in excess of fifteen days, interest at a rate not to exceed the lower of the maximum legally permissible interest rate or eighteen percent per annum may be imposed in the discretion of the Board of Directors on the principal amount unpaid from the date due until paid.
(e) Abating and Enjoining Violations by Lot Owners. The violation of any of the Rules and Regulations adopted by the Board of Directors, the breech of any Bylaws contained herein or the breach of any provision of the Declaration shall give the Board of Directors the right, in addition to any other rights set forth in these Bylaws: (i) to enter the Lot in which, or as to which, such a breach exists and summarily to abate and remove, at the expense of the defaulting Lot Owner, any structure, thing or condition that may exist therein contrary to the intent and meaning of the provisions hereof, and the Board of Directors shall not thereby be deemed guilty in any manner of trespass; or (ii) to enjoin, abate or remedy by appropriate legal proceedings, either at law or in equity, the continuance of any such breach.
(f) Legal Proceedings. Failure to comply with any of the terms of the Declaration, these Bylaws and the Rules and Regulations shall be grounds for relief, including without limitation, an action to recover any sums due for money damages, injunctive relief, foreclosure of the lien for payment of all assessments, any other relief provided for in these Bylaws or any combination thereof and any other relief afforded by a court of competent jurisdiction, all of which relief may be sought by the Association, the Board of Directors, the Managing Agent or, if appropriate, by an aggrieved Lot Owner and shall not constitute an election of remedies.
Section 8.2. Lien for Assessments.
(a) The total assessment due from each Lot Owner, any special assessment, or any other sum duly levied (including without limitation, attorney's fees, fines, interest, late charges, etc.) made pursuant to these Bylaws is hereby declared to be a lien levied against the Lot of such Lot Owner which lien shall, with respect to such assessments, be effective on the first day of the next month which begins more than seven days after delivery to the Lot Owner of notice of each special assessment or levy. The Board of Directors or the Managing Agent may file for record such other or further notice of any such lien, or such other or further document, as may be required to confirm the establishment and priority of such.
(b) Acceleration. In any case where an assessment against a Lot Owner is payable in installments, upon a default by such Lot Owner in the timely payment of any installment, the maturity of the remaining total of the unpaid installments of such assessments may be accelerated, at the option of the Board of Directors, and the entire balance of the annual or other assessment, including specifically any special assessment, may be declared due and payable in full by the service of notice of such effect upon the defaulting Lot Owner by the Board of Directors or the Managing Agent.
(c) Enforcement. The lien for assessments may be enforced and foreclosed in any manner permitted by laws of the Commonwealth of Virginia, by power of sale pursuant to Section 8.3 hereof or action in the name of the Board of Directors, or the Managing Agent, acting on behalf of the Association. The plaintiff in such proceedings shall have the right to the appointment of a receiver, if available, under the laws of the Commonwealth of Virginia.
(d) Remedies Cumulative. A suit to recover a money judgment for unpaid assessments may be maintained without foreclosing or waiving the lien securing the same, and a foreclosure may be maintained notwithstanding the pendency of any suit to recover a money judgment.
(e) Lien for Payment of Assessments. There shall be continuing lien upon each of the Lots herein, in order to secure the payment of the Assessments (including interest, costs of collection and reasonable attorney’s fees) provided under this Declaration, but such lien shall be subject to and subordinate to any first and second deeds for trust placed on the Lot at any time prior to perfection of the lien by filing in the Clerk’s Office for the Circuit Court of the County of Bedford a verified Memorandum of Lien in accordance with §55-516 of the Code of Virginia. Prior to filing a Memorandum of Lien, ten (10) days written notice of the Association’s intent to file such a Memorandum shall be given to the Owner by certified mail at his last known address. The Association may thereafter perfect its lien by filing a Memorandum of Lien in the Clerk’s Office aforesaid prior to the expiration of six (6) months from the time the delinquent Assessments became due and payable. After the lien is perfected, it shall have priority over all subsequent liens and encumbrances, except as set forth in §55-516 of the Code of Virginia. No suit to enforce any lien shall be brought after the time set forth in §55-516(E). A statement from the Association showing the balance due on any Assessment shall be prima facie proof of the current Assessment balance due and delinquency, if any, due on a particular Lot.
Section 8.3. Subordination and Mortgage Protection. Notwithstanding any other provisions hereof to the contrary, the lien of any assessment levied pursuant to these Bylaws upon any Lot (and any penalties, interest or assessments, late charges or the like) shall be subordinate to, and shall in no way affect the rights of the holder of a Mortgage made in good faith for value received; provided, however, that such subordination shall apply only to assessments which have become due and payable prior to a sale or transfer of such Lot pursuant to a decree or deed of foreclosure, or any proceeding in lieu of foreclosure. Such sale or transfer shall not relieve the purchaser of the Lot at such sale from liability for any assessments thereafter becoming due, nor from the lien of any such subsequent assessment, which lien shall have the same effect and be enforced in the same manner as provided herein.
ARTICLE 9: AMENDMENTS TO BYLAWS
Section 9.1. Amendments. These Bylaws may not be modified or amended except by vote of at least three quarters (3/4) of the Lot Owners; provided, however, that until the expiration of the Declarant control period, no Section of these Bylaws may be amended in any respect without the prior written consent of the Declarant. All amendments to the Bylaws shall be prepared and recorded by the Secretary.
ARTICLE 10: MISCELLANEOUS
Section 10.1. Notices. All notices, demands, bills, statements or other communications, under these Bylaws shall be in writing and shall be deemed to have been duly given when delivered personally or mailed by United States mail, postage pre-paid or if notification is of a default or lien, mailed by registered or certified United States mail, return receipt requested, postage pre-paid, (i) if to a Lot Owner, at the address which the Lot Owner shall designate in writing and file with the Secretary or, (ii) if no such address is designated, at the address of the Lot of such Lot Owner, or (iii) if to the Association, the Board of Directors or the Managing Agent, at the principal office of the Managing Agent or at such other address as shall be designated by notice in writing to the Lot Owners pursuant to the Section. If a Lot is owned by more than one Person, each such Person who so designates an address in writing to the Secretary shall be entitled to receive all notices.
Section 10.2. Captions. The captions herein are inserted only as a matter of convenience and for reference and in no way define, limit, or describe the scope of these Bylaws or the intent of any provision thereof.
Section 10.3. Gender. The use of the masculine gender in these Bylaws shall be deemed to include the feminine and neuter genders and the use of the singular shall be deemed to include plural, and vice versa, whenever the context so requires.
Section 10.4. Construction. These Bylaws shall be interpreted according to the laws of the State of Virginia.
ARTICLE 1: General Provisions
Section 1.1. Governed Property. These Bylaws of the Lake Manor Estates Owners Association, Inc. (“Association”) provide for the governance of the Lake Manor Estates, (hereinafter the “Development” or “Lake Manor Estates”), located in Bedford County, Virginia, and more particularly described in the Declaration.
Section 1.2. Office and Mailing Address. The office of the Association and the Board of Directors of the Association shall be located at the Property or at such other place as may be designated from time to time by the Board of Directors.
Section 1.3. Definitions. Terms used herein without definition shall have the meanings specified for such terms in the Declaration of Covenants, Conditions, Restrictions and Easements for Lake Manor Estates (“Declaration”), if not otherwise defined herein. The following terms have the following meanings:
1.3.1 “Association” means the incorporated, non-profit membership corporation of all the Lot Owners owning Lots and Lots in the Lake Manor Estates as listed in Section 1.1 and Exhibit A attached hereto.
1.3.2 “Declarant Control Period” or “Developer Control Period” means the period prior to the earlier of (i) the date Lots or Lots to which three-fourths or more of the Lots have been conveyed to Lot Owners other than the Declarant, or (ii) the date specified in a notice from the Declarant to the Lot Owners that the Declarant is turning over control of the Association to the Lot Owners other than the Declarant.
1.3.3 “Limited Assessment” means expenses separately assessed against one or more but less than all the Lot Owners generally in accordance with the use and/or expense of the services provided.
1.3.4. “Lot” means each separate numbered lot shown on the plat entitled “
1.3.5 “Majority of the Lot Owners” means those Lot Owners owning Lots to which more than fifty percent (50%) of the votes belong that are actually voted in person or by proxy at a duly convened meeting at which a quorum is present.
1.3.6 “Officer” means any person holding office pursuant to Article 4 of the Bylaws.
ARTICLE 2: ASSOCIATION
Section 2.1. Composition. The Association shall consist of all the Lot Owners for properties or homes or commercial Lots located on the properties listed in Section 1.1 and Exhibit A attached hereto. The name of the Association shall be Lake Manor Estates Owners Association, Inc. (“Association”). For all purposes the Association shall act merely as an agent for the Lot Owners as a group. The Association shall have the responsibility of administering the Lake Manor Estates community which consists of the properties listed in Section 1.1 and Exhibit A attached, establishing the means and methods of collecting assessments and charges, arranging for the management of Lake Manor Estates and performing all of the other acts that may be required or permitted to be performed by the Association by the Declaration. The foregoing responsibilities shall be performed by the Board of Directors or Managing Agent as more particularly set forth in Article 3 of these Bylaws.
Section 2.2. Annual Meetings. The annual meetings of the Association shall be held once a year at least seventy-five (75) days before the beginning of each fiscal year on such date other than a Saturday, Sunday or legal holiday as may be established by the Board of Directors upon notice as required by Section 2.5. At such annual meetings, members of the Board of Directors shall be elected by ballot of the Lot Owners in accordance with the requirements of Section 3.4 of these Bylaws. During the Declarant Control Period, the Declarant shall be entitled to designate members of the Board of Directors not elected pursuant to Section 2.4.
Section 2.3. Place of Meetings. Meetings of the Association shall be held at the principal office of the Association or at such other suitable place convenient to the Lot Owners as may be designated by the Board of Directors.
Section 2.4. Special Meetings.
(a) The President shall call a special meeting of the Association if so directed by resolution of the Board of Directors or, after the termination of the Declarant Control Period, upon a petition signed and presented to the Secretary by Lot Owners of not less than twenty-five percent of the Lots. The notice of any special meeting shall state the time, place and purpose thereof. No business shall be transacted at a special meeting except as stated in the notice.
(b) Not later than the termination of the Declarant Control Period, a special meeting of the Association shall be held at which a majority of the members of the Board of Directors shall be elected by the Lot Owners and one of the Board of Directors shall be the Declarant. If such election is held prior to the time required by this section, the members of the Board of Directors elected at such election shall not take office until the earlier of the time such election is required to be held or resignation of a director appointed by the Declarant without appointment of a replacement within ten days. The elected members of the Board of Directors shall assume office in the order of the highest number of votes received. Any remaining members of the Board of Directors designated by the Declarant shall continue to serve until their terms expire; provided, however, that no more than two such directors may serve during the first year after the special meeting and no more than one such director may serve during the second year after the special meeting.
Section 2.5. Notice of Meetings. The Secretary shall give to each Lot Owner a notice of each annual or regularly scheduled meeting of the Lot Owners at least twenty-one days prior to such meeting stating the time, place and purpose thereof. The Secretary shall give to each Lot Owner notice of any special or other meeting of the Lot Owner at least seven days prior to such meeting stating the time, place, and purpose thereof. The giving of notice in the manner provided in this Section and Section 11.1 of the Bylaws shall be considered service of notice.
Section 2.6. Adjournment of Meetings. If at any meeting of the Association a quorum is not present, Lot Owners of a majority of the Percentage Interests who are present at such meeting in person or by proxy may adjourn the meeting to a time not less than forty-eight hours after the time the original meeting was called.
Section 2.7. Order of Business. The order of business at all meetings of the Association shall be as follows:
(a) roll call (proof of quorum);
(b) proof of notice of meeting;
(c) reading of minutes of preceding meeting;
(d) reports of officers;
(e) report of Board of Directors;
(f) reports of committees;
(g) election or appointment of inspectors of election (when so required);
(h) election of members of the Board of Directors (when so required);
(i) unfinished business; and
(j) new business.
Section 2.8. Title to Lots and Lots. Title to a Lot may be taken in the name of one or more Persons, in any manner permitted by law. The Association may purchase, acquire, hold and transfer full legal title to one or more Lots or Lots in Lake Manor Estates in its own name.
Section 2.9. Voting.
(a) Voting at all meetings of the Association shall be on a percentage basis with each Lot entitled to one vote. Where the ownership of a Lot is in more than one Person or in the name of a corporation, partnership, trust, or other legal entity owning the Lot, the Person who shall be entitled to cast the vote for such Lot shall be the Person named in a certificate executed by all of the owners of such Lot and filed with the Secretary or, in the absence of such named person from the meeting, the person who shall be entitled to cast the vote for such Lot shall be a person owning an interest in such Lot who is present. If more than one person owning such Lot is present, then such vote shall be cast only in accordance with their unanimous agreement. Such certificate shall be valid until revoked by a subsequent certificate similarly executed.
(b) Except where a greater number is required by the Declaration or these Bylaws, a majority of the Lot Owners present in person or by proxy is required to adopt decisions at any meeting of the Association. If the Declarant owns or holds title to one or more Lots or Lots, the Declarant shall have the right at any meeting of the Association to cast the votes to which such Lots or Lots are entitled.
(c) No Lot Owner may vote at any meeting of the Association or be elected to or serve on the Board of Directors if payment of any assessment(s) or dues on his/her Lot is delinquent more than thirty days and the amount necessary to bring his/her account current has not been paid at the time of such meeting or election. There shall be no cumulative voting.
Section 2.10. Proxies. A vote may be cast in person or by proxy. Such proxy may be granted by any Lot Owner in favor of only another Lot Owner, the Secretary of the Association, the Declarant or his/her Mortgagee, or in the case of a non-resident Lot Owner, the lessee of such Lot Owner's Lot, or his/her attorney or management agent. Proxies shall be duly executed in writing, shall be witnessed, shall be valid only for the particular meeting designated therein and must be filed with the Secretary before the appointed time of the meeting. Such proxy shall be deemed revoked only upon actual receipt by the person presiding over the meeting of notice of revocation from any of the persons owning such Lot no later than the start of the meeting.
Section 2.11. Quorum. Except as otherwise provided in these Bylaws, the presence in person or by proxy of twenty-five percent or more of the Lot Owner(s) shall constitute a quorum at all meetings of the Association.
Section 2.12. Conduct of Meetings. The President shall preside over all meetings of the Association and the Secretary shall keep the minutes of the meeting and record in a minute book all resolutions adopted at the meeting, as well as a record of all transactions occurring thereat. The President may appoint a person to serve as parliamentarian at any meeting of the Association. The then current edition of Robert's Rules of Order shall govern the conduct of all meetings of the Association when not in conflict with the Declaration, these Bylaws, past practice of the Association, or other rules adopted by the Association for governing its meetings. All votes shall be tallied by tellers appointed by the President or other officer presiding over the meeting.
ARTICLE 3: BOARD OF DIRECTORS
Section 3.1. Powers and Duties. The Board of Directors shall have all of the powers and duties necessary for the administration of the affairs of the Association and may do all such acts and things as are required by the Declaration or by these Bylaws to be exercised and done by the Association. The Board of Directors shall have the power from time to time to adopt any Rules and Regulations deemed necessary for the benefit and enjoyment of the development; provided, however, that such Rules and Regulations shall not be in conflict with the Declaration or these Bylaws. The Board of Directors shall delegate to one of its members or to a person employed for such purpose the authority to act on behalf of the Board of Directors on such matters relating to the duties of the Managing Agent (as defined in Section 3.3 hereof), if any, which may arise between meetings of the Board of Directors as the Board of Directors deems appropriate. In addition to the duties imposed by these Bylaws or by any resolution of the Association that may hereafter be adopted, the Board of Directors shall on behalf of the Association:
(a) Prepare and adopt an annual budget, in which there shall be expressed the assessments of each Lot Owner to defray the costs and expenses of operating the Association and for maintaining common areas, open spaces, and other assets of the Association.
(b) Make assessments against Lot Owners to defray the costs and expenses of the Association, and establish the means and methods of collecting such assessments from the Lot Owners.
(c) Provide for the operation, care, upkeep and maintenance of all of the Property and services of the Association.
(d) Designate, hire and dismiss the personnel necessary for the maintenance, operation, repair and replacement of Association properties and assets and to provide services for the same and provide for the compensation of such personnel in the performance of their duties.
(e) Collect the assessments against the Lot Owners, deposit the proceeds thereof in bank depositories designated by the Board of Directors and use the proceeds to carry out the obligations of the Association.
(f) Make and amend the Rules and Regulations of the Association.
(g) Open bank account(s) on behalf of the Association and designate the signatories thereon.
(h) Enforce by legal means the provisions of the Declaration, these Bylaws and the Rules and Regulations, act on behalf of the Lot Owners with respect to all matters arising out of any eminent domain proceedings, and notify the Lot Owners of any litigation against the Association involving a claim in excess of ten percent (10%) of the amount of the annual budget.
(i) Obtain and carry insurance against casualties and liabilities, as provided in Article 6 of these Bylaws, pay the premiums therefor and adjust and settle any claims thereunder.
(j) Pay the cost of all authorized services rendered to the Association and not billed to Lot Owners of individual Lots or Lots or otherwise provided for in Section 5.1 and 5.2 of these Bylaws.
(k) Keep books with detailed accounts in chronological order of the receipts and expenditures affecting the Association, and the administration of Lake Manor Estates. Such books and vouchers accrediting the entries therein shall be available for examination by the Lot Owners, their attorneys, accountants and authorized agents during general business hours on business days at the times and in the manner set and announced by the Board of Directors for the general knowledge of the Lot Owners. All books and records shall be kept in accordance with generally accepted accounting practices and shall be audited once each year by an independent auditor retained by the Board of Directors.
(l) Borrow money on behalf of the Association when required in connection with any specified expense relating to the operation, care, upkeep and maintenance of Association assets; provided, however, that the consent of at least two-thirds in number of all Lot Owners, obtained either in writing or at a meeting duly called and held for such purpose in accordance with the provisions of these Bylaws, shall be required to borrow any sum in excess of Ten Thousand Dollars ($10,000).
(m) Acquire, hold and dispose of Lots and Lots or land and mortgage the same if such expenditures and hypothecations are included in the budget adopted by the Association.
(n) Do such other things and acts not inconsistent with the law, the Declaration or these Bylaws which the Board of Directors may be authorized to do by a resolution of the Association.
Section 3.2. Managing Agent. The Board of Directors may employ for the Association a "Managing Agent" at a compensation to be established by the Board of Directors.
(a) Requirements. The Managing Agent shall be a person or persons possessing competence in the skills necessary to proper management of the Association.
(b) Duties. The Managing Agent shall perform such duties and services as the Board of Directors shall direct. The Managing Agent shall perform the obligations, duties and services relating to the management of the Association in compliance with the provisions of these Bylaws.
(c) Standards. The Board of Directors shall impose appropriate standards of performance upon the Managing Agent. Unless the Managing Agent is instructed otherwise by the Board of Directors:
(1) the cash method of accounting shall be employed and expenses required by these Bylaws to be charged to more than one but less than all Lot Owners shall be accounted for separately;
(2) two or more persons shall be responsible for handling cash to maintain adequate financial control procedures;
(3) cash accounts of the Association shall not be commingled with any other accounts;
(4) no remuneration shall be accepted by the Managing Agent from vendors, independent contractors or others providing goods or services to the Association whether in the form of commission, finders' fees, service fees or otherwise; and discounts received shall benefit the Association;
(5) any financial or other interest which the Managing Agent may have in any firm providing goods or services to the Association shall be disclosed promptly to the Board of Directors; and
(6) a monthly financial report shall be prepared for the Association containing:
(A) an Income Statement reflecting all income and expense activity for the preceding month on an accrual basis;
(B) an Account Activity Statement reflecting all receipt and disbursement activity for the preceding month on a cash basis;
(C) an Account Status Report reflecting the status of all accounts in an "actual" versus "projected" (budget) format;
(D) a Balance Sheet reflecting the financial condition of the Association on an unaudited basis;
(E) a Budget Report reflecting any actual or pending obligations which are in excess of budgeted amounts by an amount exceeding the operating reserves or ten percent of a major budget category (as distinct from a specific line item in an expended chart of accounts); and
(F) a Delinquency Report listing all Lot Owners who are delinquent in paying assessments and describing the status of any actions to collect such assessments.
(d) Limitations. The Board of Directors may employ a Managing Agent for a term not to exceed one year. Any contract with the Managing Agent must provide that it may be terminated, without payment of a termination fee, without cause on no more than ninety (90) days' written notice and with cause on no more than ten (10) days' written notice.
Section 3.3. Number and Terms of Office.
(a) Designated Members. The initial Board of Directors shall consist of no less than three (3) nor more than five (5) persons, all of whom shall be designated by the Declarant. The term of office of at least one of such persons shall expire at the third annual meeting; the term of office of up to two additional persons shall expire at the second annual meeting; and the term of office of any other persons shall expire at the first annual meeting. The term of each designee shall be fixed by the Declarant. At the special meeting required by Subsection 2.4(b), a number of the persons designated by the Declarant shall resign if necessary so that a majority of the members of the Board of Directors shall have been elected in accordance with Subsection 2.4(b). The persons elected shall serve for the remainder of the terms of office of the resigning members of the Board of Directors who such persons replace, or if no resignation was required, for the terms of office necessary so that the term of office of three members of the Board of Directors shall expire at each of the first three annual meetings after their election. The persons receiving the greatest vote shall be elected for the longest available terms. At the expiration of the terms of office of all members of the Board of Directors designated by the Declarant or elected at the special meeting held pursuant to Subsection 2.4(b), all successor directors shall be elected to serve for a term of three years.
(b) Elected Members. No later than the first annual meeting of the Association, the Board of Directors shall be composed of up to five persons, all of whom shall be Lot Owners, Mortgagees (or designees of Mortgagees) or designees of the Declarant. Except for resignation or removal, the members of the Board of Directors shall hold office until their respective successors shall have been elected by the Association.
Section 3.4. Election of Directors.
(a) Elections Committee. At least ninety (90) days prior to the special meeting required by Section 2.4(b) of these Bylaws and each annual meeting of the Association, the Board of Directors shall appoint an Elections Committee consisting of a member of the Board of Directors whose term is not then expiring and at least two other Lot Owners. The Elections Committee shall develop election procedures and administer such procedures as are approved by the Board of Directors.
(b) Nominations. Persons qualified to be directors may be nominated for election only by a nominating petition submitted to the Chairman of the Elections Committee at least thirty-five (35) days before the meeting at which the election is to be held. The nominating petition must be signed by Lot Owners representing at least three Lots or Lots and either signed by the nominee or accompanied by a document signed by the nominee indicating willingness to serve as a member of the Board of Directors; provided, however, that additional nominations may be made from the floor at the meeting at which the election is held for each vacancy on the Board of Directors for which no more than one person has been nominated by petition. The nominee must either be present and consent to the nomination or have indicated in writing the willingness to serve. This Subsection (b) does not apply to Persons appointed to the Board of Directors by the Declarant.
(c) Qualifications. No person shall be eligible for election as a member of the Board of Directors unless he is (alone or together with one or more other Persons) a Lot Owner. No Person shall be elected as a member of the Board or shall continue to serve as a member of the Board if he is more than sixty (60) days delinquent in his/her financial obligations to the Association and a lien has been filed against his/her Lot.
Section 3.5. Removal or Resignation of Directors. Except with respect to directors designated by Declarant, at any regular or special meeting duly called, any one or more of the member of the Board of Directors may be removed with or without cause by a Majority of the Lot Owners and a successor may then and there be elected to fill the vacancy thus created. Any director whose removal has been proposed by the Lot Owners shall be given at least seven days' notice of the time, place and purpose of the meeting and shall be given an opportunity to be heard at the meeting. A member of the Board of Directors may resign at any time and, except for a director designated by the Declarant, shall be deemed to have resigned upon disposition of his/her Lot, or if not in attendance at three consecutive regular meetings of the Board, unless the minutes reflect the Board's consent to such absence.
Section 3.6. Vacancies. Vacancies in the Board of Directors caused by any reason other than the removal of a director by a vote of the Association shall be filled by a vote of a majority of the remaining Directors at a special meeting of the Board of Directors held for such purposes promptly after the occurrence of any such vacancy, even though the directors present at such meeting may constitute less than a quorum. Each person selected shall be a member of the Board of Directors until a successor shall be elected at the next annual meeting of the Association. During the Declarant Control Period, the Declarant shall designate the successor to any member previously designated by the Declarant who resigns or is removed.
Section 3.7. Organizational Meeting. The first meeting of the Board of Directors following the annual meeting of the Association shall be held within thirty (30) days thereafter at such time and place as shall be fixed by the Association at the meeting at which such Board of Directors shall have been elected, and no notice shall be necessary to the newly elected members of the Board of Directors in order legally to constitute such meeting, providing a majority of the whole Board of Directors is present at the meeting.
Section 3.8. Regular Meetings. Regular meetings of the Board of Directors may be held at such time and place as shall be determined from time to time by a majority of the directors, but such meetings shall be held at least twice each fiscal year. Notice of regular meetings of the Board of Directors shall be given in writing to each director, by hand delivery, mail or fax, at least three business days prior to the day named for such meeting.
Section 3.9. Special Meetings. Special meetings of the Board of Directors may be called by the President on three days' notice to each director, given in writing or by telephone, which notice shall state the time, place and purpose of the meeting. Special meetings of the Board of Directors shall be called by the President or Secretary in like manner and on like notice on the written request of at least three directors.
Section 3.10. Waiver of Notice. Any director may at any time, in writing, waive notice of any meeting of the Board of Directors, and such waiver shall be deemed equivalent to the giving of such notice. Attendance by a Director, in person or by telephone communication, at any meeting of the Board of Directors shall constitute a waiver of notice by him of the time, place and purpose of such meeting. If all Directors are present at any meeting of the Board of Directors, no notice shall be required and any business may be transacted at such meeting.
Section 3.11. Quorum of Board of Directors. At all meetings of the Board of Directors a majority of the directors shall constitute a quorum for the transaction of business, and the votes of a majority of the directors present at a meeting at which a quorum is present shall constitute the decision of the Board of Directors. If at any meeting of the Board of Directors there shall be less than a quorum present, a majority of those present may adjourn the meeting from time to time. At any such adjourned meeting at which a quorum is present, any business which might have been transacted at the meeting originally called may be transacted without further notice. A member of the Board of Directors who participates in a meeting by means of telephone communications shall be deemed present at the meeting for all purposes.
Section 3.12. Fidelity Bonds. As required by Subsection 6.4(a) hereof, there shall be obtained fidelity bonds in an amount not less than one-half the total annual budget for the year (in such greater amounts as may be required by the Mortgagees) for all officers, directors and employees of the Lot Owners Association, including without limitation the Managing Agent handling or responsible for Association funds. The premiums on such bonds shall constitute Net Upkeep Expense.
Section 3.13. Compensation. No director shall receive any compensation from the Association for acting as such.
Section 3.14. Conduct of Meetings. The President shall preside over all meetings of the Board of Directors and the Secretary shall keep a minute book of the Board of Directors recording therein all resolutions adopted by the Board of Directors and a record of all transactions and proceedings occurring at such meetings. The then current edition of Robert's Rules of Order shall govern the conduct of the meetings of the Board of Directors when not in conflict with the Declaration, these Bylaws or the Condominium Act (if applicable).
Section 3.15. Action Without Meeting. Any action by the Board of Directors required or permitted to be taken at any meeting may be taken without a meeting if all of the members of the Board of Directors shall individually or collectively consent in writing to such action. Any such written consent shall be filed with the minutes of the proceedings of the Board of Directors.
Section 3.16. Liability of the Board of Directors, Officers, Lot Owners and Association.
The officers and members of the Board of Directors shall not be liable to the Association or to any Lot Owner for any mistake of judgment, negligence or otherwise, except for their own individual willful misconduct or bad faith. The Association shall indemnify and hold harmless each of the officers and directors from and against all contractual liability to other arising out of the contracts made by the officers or the Board of Directors on behalf of the Association unless any such contract shall have been made in bad faith or contrary to the provisions of the law, the Declaration, or these Bylaws, except to the extent that such liability is satisfied by directors and officers liability insurance. Officers and members of the Board of Directors shall have no personal liability with respect to any contract made by them in good faith and on behalf of the Association. The liability of any Lot Owners arising out of any contract made by the officers or Board of Directors, or out of the indemnification of the members of the Board of Directors or officers, or for damages as a result of injuries arising in connection with the Common Areas solely by virtue of his/her ownership of a Lot or for liabilities incurred by the Association, shall be limited to the total liability divided by the total number of Lots. Every agreement made by the officers, the Board of Directors, or the Managing Agent on behalf of the Association shall, if obtainable, provide that the officers, the members of the Board of Directors or the Managing Agent, as the case may be, are acting only as agents for the Association and shall have no personal liability thereunder (except as Lot Owners), and that each Lot Owner's liability thereunder shall be limited to the total liability thereunder divided by the total number of Lots. The Association shall indemnify any person who was or is a party or is threatened at be made a party to any threatened, pending or completed action, suit or proceeding by reason of the fact that he is or was a director or officer of the Association against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement by him in connection with such action, suit, or proceeding if he acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interest of the Association.
Section 3.17. Common or Interested Directors. Each member of the Board of Directors shall exercise his/her powers and duties in good faith and with a view to the interests of the Association. No contract or other transaction between the Association and any of its directors, or between the Association and any corporation, firm or association (including the Declarant) in which any of the directors of the Association are directors or officers or are pecuniarily or otherwise interested, is either void or voidable because any such director is present at the meeting of the Board of Directors or any committee thereof which authorizes or approves the contract or transaction, or because his/her vote is counted for such purpose, if any of the conditions specified in any of the following subsections exists:
(a) The fact of the common directorate or interest is disclosed or known to the Board of Directors or a majority thereof or noted in the minutes, and the Board of Directors authorizes, approves, or ratifies such contract or transaction in good faith by a vote sufficient for the purpose; or
(b) The fact of the common directorate or interest is disclosed or known to at least a Majority of the Lot Owners, and the Lot Owners approve or ratify the contract or transaction in good faith by a vote sufficient for the purpose; or
(c) The contract or transaction is commercially reasonable to the Association at the time it is authorized, ratified, approved or executed.
Any common or interested directors may be counted in determining the presence of a quorum of any meeting of the Board of Directors or committee thereof which authorizes, approves or ratifies any contract or transaction, and may vote thereof to authorize any contract or transaction with like force and effect as if such director where not such director or officer of such Association or not so interested.
Section 3.18. Board of Directors as Attorney-in-Fact. The Board of Directors is hereby irrevocably appointed as agent and attorney-in-fact for the Lot Owners of all of the Lots and Lots and for each of them, to manage, control and deal with the interests of such Lot Owners in the Common Areas of the development to permit the Board of Directors to fulfill all of its powers, rights, function and duties. The Board of Directors is hereby irrevocably appointed as agent and attorney-in-fact for each Lot Owner, each Mortgagee, other named insured and their beneficiaries and any other holder of a lien or other interest in the development or the property to adjust and settle all claims arising under insurance policies purchased by the Board of Directors and to execute and deliver release upon the payment of claims. The Board of Directors may grant and accept easements and licenses over the Common Areas.
Section 3.19. Covenants Authority.
(a) Purpose. The Board of Directors may act to assure that the development shall always be maintained in a manner: (1) providing for visual harmony and soundness of repair; (2) avoiding activities deleterious to the esthetic or property values of the development; (3) furthering the comfort of the Lot Owners, their guests and tenants; and (4) promoting the general welfare and safety of the development community.
(b) Powers. The Board of Directors shall regulate the design, appearance, use and maintenance of the Common Areas. The Board of Directors shall have the power to issue a cease and desist request to a Lot Owner, his/her guests, invitees, or lessees whose actions are inconsistent with the provisions of the law, the Declaration, the Rules and Regulations or resolutions of the Board of Directors (upon petition of any Lot Owner or upon its own motion). The Board of Directors shall from time to time, as required, provide interpretations of the Declaration, Rules and Regulations and resolutions pursuant to the intents, provisions and qualifications thereof when requested to do so by a Lot Owner or upon its own volition.
ARTICLE 4: OFFICERS
Section 4.1. Designation. The principal officers of the Association shall be the President, the Vice President, the Secretary and the Treasurer, all of whom shall be elected by the Board of Directors. The Board of Directors may appoint an assistant treasurer, an assistant secretary and such other officers as in its judgment may be necessary. Any other officers may, but need not, be Lot Owners or member of the Board of Directors. The office of the President and the office of the Secretary shall not be held by the same person.
Section 4.2. Election of Officers. The officers of the Association shall be elected annually by the Board of Directors at the organizational meeting of each new Board of Directors and shall hold office at the pleasure of the Board of Directors.
Section 4.3. Removal of Officers. Upon the affirmative vote of a majority of all members of the Board of Directors, any officer may be removed, either with or without cause, and a successor may be elected at any regular meeting of the Board of Directors or at any special meeting of the Board of Directors, called for such purpose.
Section 4.4. President. The President shall be the chief executive officer of the Association; preside at all meetings of the Association and of the Board of Directors; have general and active management of the business of the Association subject to the control of the Board of Directors; see that all orders and resolutions of the Board of Directors are carried into effect; and appoint committees from among the Lot Owners from time to time as the President may in his/her discretion decide is appropriate to assist in the conduct of the affairs of the Association.
Section 4.5. Vice President. The Vice President shall take the place of the President and perform the duties of the President whenever the President shall be absent or unable to act. If neither the President nor the Vice President is able to act, the Board of Directors shall appoint some other member of the Board of Directors to act in the place of the President, on an interim basis. The Vice President shall also perform such other duties as shall from time to time be imposed by the Board of Directors or by the President.
Section 4.6. Secretary. The Secretary shall keep the minutes of all meetings of the Lot Owners Association and of the Board of Directors; have charge of such books and papers as the Board of Directors may direct; give or cause to be given all notices required to be given by the Association; maintain a register setting forth the place to which all notices to Lot Owners and Mortgagees hereunder shall be delivered; and, in general, perform all the duties incident to the office of Secretary.
Section 4.7. Treasurer. The Treasurer shall (together with the Managing Agent) be responsible for Association funds and securities; keep full and accurate financial records and books of accounts showing all receipts and disbursements; prepare all required financial data; deposit all monies and other valuable effects in the name of the Board of Directors, the Lot Owners Association or the Managing Agent, in such depositories as may from time to time be designated by the Board of Directors; and, in general, perform all the duties incident to the office of Treasurer.
Section 4.8. Execution of Documents. All agreements, contracts, deeds, leases, checks and other instruments of the Association for aggregate expenditures or obligations in excess of Two Thousand Dollars ($2,000), and all checks drawn upon reserve accounts, shall be executed by any two persons designated by the Board of Directors. All such instruments for expenditures or obligations of Two Thousand Dollars ($2,000) or less, except from reserve accounts, may be executed by any one person designated by the Board of Directors.
Section 4.9. Compensation of Officers. No officer shall receive any compensation from the Association for acting as such officer.
ARTICLE 5: OPERATION OF THE PROPERTY
Section 5.1. Determination of Assessments Against Lot Owners.
(a) Fiscal Year. The fiscal year of the Association shall be January 1 through December 31 unless otherwise determined by the Board of Directors.
(b) Preparation and Approval of Budget.
(1) At least one hundred twenty (120) days before the beginning of each fiscal year, the Board of Directors shall adopt a budget for the Association containing an estimate of the total amount considered necessary to pay the cost of maintenance, management, operation, repair and replacement of the Common Areas, and those parts of any Lot which it is the responsibility of the Board of Directors to maintain, repair and replace, and the cost of wages, materials, insurance premiums, services, supplies and other expenses required by the Declaration, these Bylaws, or by a resolution of the Association, and which will require during the ensuing fiscal year for the administration, operation, maintenance and repair of the Property and the rendering to the Lot Owners of all related services.
(2) Such budget shall also include such reasonable amounts as the Board of Directors considers necessary to provide working capital, a general operating reserves for contingencies and replacements. At least sixty (60) days before the beginning of each fiscal year, the Board of Directors shall send to each Lot Owner a copy of the budget in a reasonably itemized form which sets forth the amount of the Assessment and any special assessment payable by each Lot Owner. Such budget shall constitute the basis for determining each Lot Owner's Assessment.
(3) Assessment and Payment. Subject to the provisions of Subsection 9.1(a) hereof, the total amount of the estimated funds required from assessments for the operation of the Association set forth in the budget adopted by the Board of Directors shall be assessed each Lot equally, and shall be lien against each Lot Owner's Lot as provided in Section 9.2 of these Bylaws. To the extent such expenses are not covered by the Assessment, such expenses shall be paid by a special assessment against each Lot equally, such assessment to be due within thirty (30) days of notice of the same. Within one hundred twenty (120) days after the end of each fiscal year, the Board of Directors shall supply to all Lot Owners, and to each Mortgagee requesting same, an itemized accounting of the Association’s expenditures for such fiscal year actually incurred and paid, together with a tabulation of the amounts collected pursuant to the budget adopted by the Board of Directors for such fiscal year, and showing the net amount over or short of the actual expenditures plus reserves. Any amount accumulated in excess of the amount required for actual expenses and reserves shall, at the discretion of the Board of Directors, be placed in reserve accounts, be placed in a special account to be expended solely for the general welfare of the Lot Owners. Any net shortage shall be assessed promptly against the each Lot equally and shall be payable within thirty (30) days of notice of the same.
(d) Reserves. The Board of Directors shall build up and maintain reasonable reserves for working capital. Expenditures not originally included in the annual budget which may become necessary during the year shall be charges first against such reserves. If the reserves are inadequate for any reason, including non-payment of any Lot Owner's assessments, the Board of Directors may at any time levy a further assessment, which shall be assessed against the Lots equally and which may be payable in a lump sum or in installments as the Board of Directors may determine. The Board of Directors shall serve notice of any such further assessment on Lot Owners by a statement in writing giving the amount and reasons therefore, and such further assessment shall, unless otherwise specified in the notice, be due within thirty (30) days of notice of the same. All Lot Owners so notified shall be obligated to pay the amount of such assessment. Such assessment shall be a lien as of the effective date as set forth in the preceding Subsection (c).
(e) Effect of Failure to Prepare or Adopt Budget. The failure or delay of the Board of Directors to prepare or adopt a budget for any fiscal year shall not constitute a waiver or release in any manner of a Lot Owner's obligation to pay his/her allocable share of the Net Upkeep Expense as herein provided.
(f) Accounts. All sums collected by the Board of Directors with respect to assessments against the Lot Owners or from any other source may be held in a single fund or account.
Section 5.2. Payment of Assessments. Each Lot Owner shall pay the amounts assessed by the Board of Directors pursuant to the provisions of Section 5.1. No Lot Owner may exempt himself/herself from liability for such assessments by waiver of the use or enjoyment of any of the Common Areas or by abandonment of his/her Lot. No Lot Owner shall be liable for the payment of any part of any amount assessed against his/her Lot subsequent to the date of recordation of a conveyance by him/her in fee of such Lot. Prior to or at the time of any such conveyance, all liens, unpaid charges and assessments shall be paid in full and discharged. The purchaser of a Lot shall be jointly and severally liable with the selling Lot Owner for all unpaid assessments against recordation, without prejudice to the purchaser's right to recover from the selling Lot Owner amounts paid by the purchaser therefore; provided, however, that any such purchaser shall be entitled to a statement setting forth the amount of the unpaid assessments prior to the selling Lot Owner within ten days following a written request therefore to the Board of Directors or Managing Agent and such purchaser shall not be liable for, nor shall the Lot conveyed be subject to a lien for, any unpaid assessments in excess of the amount therein set forth; and provided, further, that each Mortgagee who comes into possession of a Lot by virtue of foreclosure or by deed or assignment in lieu of foreclosure, or any purchaser at a foreclosure sale, shall take the Lot free of any claims for unpaid assessments or charges against such Lot which accrue prior to the time such Mortgagee comes into possession thereof, except for claims for a pro rate share of such assessments or charges to all Lots including the mortgaged Lot.
Section 5.3. Collection of Assessments. The Board of Directors, or the Managing Agent at the request of the Board of Directors, shall take prompt action to collect any assessments due from any Lot Owner which remain unpaid for more than thirty (30) days from the due date for payment thereof. Any assessment, or installment thereof, not paid within five days after due shall accrue a late charge in the amount of Ten Dollars ($10), or such other amount as may be established from time to time by the Board of Directors.
Section 5.4. Statement of Assessments. The Board of Directors shall promptly provide any Lot Owner, contract purchaser or Mortgagee so requesting the same in writing with a written statement of all unpaid assessments due from such Lot Owner. The Board of Directors may impose a reasonable charge for the preparation of such statement to cover the cost of preparation.
Section 5.5. Maintenance, Repair, Replacement and Other Expenses.
(a) By the Board of Directors. The Board of Directors shall be responsible for the maintenance, repair and replacement (unless, if in the opinion of not less than eighty percent of the Board of Directors such expense was necessitated by the negligence, misuse or neglect of a Lot Owner) of all of the Common Areas located inside or outside of the Lots or Lots, the cost of which shall be charged to all Lot Owners.
(b) By the Lot Owner.
(1) Each Lot Owner shall keep his/her Lot and its buildings, equipment, appliances and appurtenances in good order, condition and repair and in a clean and sanitary condition, and shall do all exterior redecoration, painting and varnishing which may at any time be necessary to maintain the good appearance and condition of his/her Lot. In addition, each Lot Owner shall be responsible for all damage to any other Lots or to the Common Areas resulting from his/her failure or negligence to make any of the repairs required by this Section. Each Lot Owner shall perform his/her responsibility in such manner as shall not unreasonably disturb or interfere with the other Lot Owners. Each Lot Owner shall promptly report to the Board of Directors or the Managing Agent any defect or need for repairs for which the Board of Directors is responsible.
(2) Any Lot Owner permitted by the Board of Directors to use a specific portion of the Common Areas for storage is responsible for the maintenance and care of such portion and shall use such portion in a safe and sanitary manner.
(c) Manner of Repair and Replacement. All repairs and replacements shall be subsequently similar to the original construction and installation and shall be of first-class quality, but may be done with contemporary building materials and equipment. The method of approving payment vouchers for all repairs and replacements shall be determined by the Board of Directors.
Section 5.6. Additions, Alteration or Improvements by Board of Directors. Except during the Declarant Control Period, whenever in the judgment of the Board of Directors the Common Areas shall require additions, alterations or improvements costing in excess of Ten Thousand Dollars ($10,000) during any period of twelve consecutive months, the making of such additions, alterations or improvements requires the prior approval of a Majority of the Lot Owners, and the Board of Directors shall assess all Lot Owners benefited for the cost thereof. Any additions, alterations or improvements costing Ten Thousand Dollars ($10,000) or less during any period of twelve consecutive months may be made by the Board of Directors without approval of the Lot Owners. The Ten Thousand Dollar ($10,000) limitation may be altered annually by the Board of Directors with a sixty day (60 day) notice to the Lot Owners. Notwithstanding the foregoing, if, in the opinion of not less than eighty percent of the members of the Board of Directors, such additions, alteration or improvements are exclusively or substantially exclusively for the benefit of the Lot Owners requesting the same, such requesting Lot Owners shall be assessed therefore in such proportion as they jointly approve or, if they are unable to agree thereon, in such proportion as may be determined by the Board of Directors.
ARTICLE 6: INSURANCE
Section 6.1. Authority to Purchase; Notice.
(a) Insurance policies relating to the Association shall be purchased by the Board of Directors. The Board of Directors, the Managing Agent and the Declarant shall not be liable for failure to obtain any coverages required by this Article 6 or for any loss or damage resulting from such failure if such failure is due to the unavailability of such coverages from reputable insurance companies, or if such coverages are so available only at demonstrably unreasonable costs. The Board of Directors shall promptly furnish to each Lot Owner written notice of the obtainment of, subsequent changes therein, or termination, of insurance coverages obtained on behalf of the Association.
(b) If possible each such policy shall provide that:
(1) The insurer waives any right to claim by way of subrogation against the Declarant, the Association, the Board of Directors, the Managing Agent or the Lot Owners, and their respective agents, employees, guests and, in the case of the Lot Owners, the members of their households;
(2) Such policy shall not be canceled, invalidated or suspended due to the conduct of any Lot Owner (including his/her invitees, agents and employees) or of any member, officer or employee of the Board of Directors or the Managing Agent without prior demand in writing that the Board of Directors or the Managing Agent cure the defect and neither shall have so cured such defect within sixty days after such demand;
(3) Such policy may not be canceled or substantially modified (including cancellation for non-payment of premium) without at least sixty days' prior written notice to the Board of Directors and the Managing Agent and, in the case of physical damage insurance, to all Mortgagees.
(c) The Declarant, so long as Declarant shall own any Lot, shall be protected by all such policies as a Lot Owner.
(d) All policies of insurance shall be written by reputable companies licensed to do business in the Commonwealth of Virginia.
Section 6.2. Physical Damage Insurance.
(a) The Board of Directors shall obtain and maintain a blanket, "all-risk" form policy of fire insurance with extended coverage covering the assets of the Association, the Board of Directors and all Lot Owners and their Mortgagees, as their interests may appear, in an amount equal to 100% of the then current replacement cost of the Common Areas (exclusive of items normally excluded from such coverage), with deduction for depreciation.
(b) Such policy shall also provide, if possible, a waiver of any right of the insurer to repair, rebuild or replace any damage or destruction, if a decision is made pursuant to these Bylaws not to do so.
Section 6.3. Liability Insurance. The Board of Directors shall obtain and maintain comprehensive general liability and property damage insurance in such limits as the Board of Directors may from time to time determine, insuring each member of the Board of Directors, the Managing Agent, each Lot Owner and the Declarant against any liability to the public or to the Lot Owners (and their invitees, agents and employees) arising out of, or incident to the ownership and/or use of the Common Areas.
Section 6.4. Other Insurance. The Board of Directors may obtain and maintain:
(a) adequate fidelity coverage to protect against dishonest acts on the part of officers, directors, trustees and employees of the Association, including the Managing Agent. Such fidelity bonds shall: (i) name the Association as an obligee; (ii) be written in an amount not less than one-half the total annual assessments for the year or the amount required by the Federal National Mortgage Association or the Federal Home Loan Mortgage Corporation or such similar entity, whichever is greatest; and (iii) contain waivers of any defense based upon the exclusion of persons who serve without compensation from any definition of "employee" or similar expression;
(b) if required by any governmental or quasi-governmental agency, including without limitation the Federal National Mortgage Association or the Federal Home Loan Mortgage Corporation, flood insurance in accordance with the then applicable regulations of such agency;
(c) workman's compensation insurance if and to the extent necessary to meet the requirements of law;
(d) such other insurance as the Board of Directors may determine or as may be requested from time to time by a Majority of the Lot Owners.
ARTICLE 7: COMPLIANCE AND DEFAULT
Section 7.1. Relief. Each Lot Owner shall be governed by, and shall comply with, all of the terms of these Bylaws and the Declaration as any of the same may be amended from time to time. In addition to the remedies provided by law, a default by a Lot Owner shall entitle the Association, acting through its Board of Directors or through the Managing Agent, to the following relief:
(a) Additional Liability. Each Lot Owner shall be liable for the expense of all maintenance, repair or replacement rendered necessary by his/her act, neglect or carelessness or the act, neglect or carelessness of any member of his/her family or his/her employees, agents, guests or licensees but only to the extent that such expense is not covered by the proceeds of insurance carried by the Board of Directors.
(b) Costs and Attorney's Fees. In any proceeding arising out of any alleged default by a Lot Owner, the prevailing party shall be entitled to recover the costs of such proceeding and such reasonable Attorney's Fees actually incurred as may be determined by the court.
(c) No Waiver of Rights. The failure of the Association, the Board of Directors or of a Lot Owner to enforce any right, provision, covenant or condition which may be granted by these Bylaws or the Declaration shall not constitute a waiver of the right of the Lot Owners Association, the Board of Directors or of a Lot Owner to enforce such right, provision, covenant or condition in the future. All rights, remedies and privileges granted to the Association, the Board of Directors or of a Lot Owner pursuant to any term, provision, covenant or condition shall be deemed to be cumulative and the exercise of any one or more thereof shall not be deemed to constitute an election of remedies, nor shall it preclude the party exercising the same from exercising such other privileges as may be granted to such by these Bylaws, the Declaration, or at law or in equity.
(d) Interest. In the event of a default by any Lot Owner in paying any sum assessed against his/her Lot which continues for a period in excess of fifteen days, interest at a rate not to exceed the lower of the maximum legally permissible interest rate or eighteen percent per annum may be imposed in the discretion of the Board of Directors on the principal amount unpaid from the date due until paid.
(e) Abating and Enjoining Violations by Lot Owners. The violation of any of the Rules and Regulations adopted by the Board of Directors, the breech of any Bylaws contained herein or the breach of any provision of the Declaration shall give the Board of Directors the right, in addition to any other rights set forth in these Bylaws: (i) to enter the Lot in which, or as to which, such a breach exists and summarily to abate and remove, at the expense of the defaulting Lot Owner, any structure, thing or condition that may exist therein contrary to the intent and meaning of the provisions hereof, and the Board of Directors shall not thereby be deemed guilty in any manner of trespass; or (ii) to enjoin, abate or remedy by appropriate legal proceedings, either at law or in equity, the continuance of any such breach.
(f) Legal Proceedings. Failure to comply with any of the terms of the Declaration, these Bylaws and the Rules and Regulations shall be grounds for relief, including without limitation, an action to recover any sums due for money damages, injunctive relief, foreclosure of the lien for payment of all assessments, any other relief provided for in these Bylaws or any combination thereof and any other relief afforded by a court of competent jurisdiction, all of which relief may be sought by the Association, the Board of Directors, the Managing Agent or, if appropriate, by an aggrieved Lot Owner and shall not constitute an election of remedies.
Section 8.2. Lien for Assessments.
(a) The total assessment due from each Lot Owner, any special assessment, or any other sum duly levied (including without limitation, attorney's fees, fines, interest, late charges, etc.) made pursuant to these Bylaws is hereby declared to be a lien levied against the Lot of such Lot Owner which lien shall, with respect to such assessments, be effective on the first day of the next month which begins more than seven days after delivery to the Lot Owner of notice of each special assessment or levy. The Board of Directors or the Managing Agent may file for record such other or further notice of any such lien, or such other or further document, as may be required to confirm the establishment and priority of such.
(b) Acceleration. In any case where an assessment against a Lot Owner is payable in installments, upon a default by such Lot Owner in the timely payment of any installment, the maturity of the remaining total of the unpaid installments of such assessments may be accelerated, at the option of the Board of Directors, and the entire balance of the annual or other assessment, including specifically any special assessment, may be declared due and payable in full by the service of notice of such effect upon the defaulting Lot Owner by the Board of Directors or the Managing Agent.
(c) Enforcement. The lien for assessments may be enforced and foreclosed in any manner permitted by laws of the Commonwealth of Virginia, by power of sale pursuant to Section 8.3 hereof or action in the name of the Board of Directors, or the Managing Agent, acting on behalf of the Association. The plaintiff in such proceedings shall have the right to the appointment of a receiver, if available, under the laws of the Commonwealth of Virginia.
(d) Remedies Cumulative. A suit to recover a money judgment for unpaid assessments may be maintained without foreclosing or waiving the lien securing the same, and a foreclosure may be maintained notwithstanding the pendency of any suit to recover a money judgment.
(e) Lien for Payment of Assessments. There shall be continuing lien upon each of the Lots herein, in order to secure the payment of the Assessments (including interest, costs of collection and reasonable attorney’s fees) provided under this Declaration, but such lien shall be subject to and subordinate to any first and second deeds for trust placed on the Lot at any time prior to perfection of the lien by filing in the Clerk’s Office for the Circuit Court of the County of Bedford a verified Memorandum of Lien in accordance with §55-516 of the Code of Virginia. Prior to filing a Memorandum of Lien, ten (10) days written notice of the Association’s intent to file such a Memorandum shall be given to the Owner by certified mail at his last known address. The Association may thereafter perfect its lien by filing a Memorandum of Lien in the Clerk’s Office aforesaid prior to the expiration of six (6) months from the time the delinquent Assessments became due and payable. After the lien is perfected, it shall have priority over all subsequent liens and encumbrances, except as set forth in §55-516 of the Code of Virginia. No suit to enforce any lien shall be brought after the time set forth in §55-516(E). A statement from the Association showing the balance due on any Assessment shall be prima facie proof of the current Assessment balance due and delinquency, if any, due on a particular Lot.
Section 8.3. Subordination and Mortgage Protection. Notwithstanding any other provisions hereof to the contrary, the lien of any assessment levied pursuant to these Bylaws upon any Lot (and any penalties, interest or assessments, late charges or the like) shall be subordinate to, and shall in no way affect the rights of the holder of a Mortgage made in good faith for value received; provided, however, that such subordination shall apply only to assessments which have become due and payable prior to a sale or transfer of such Lot pursuant to a decree or deed of foreclosure, or any proceeding in lieu of foreclosure. Such sale or transfer shall not relieve the purchaser of the Lot at such sale from liability for any assessments thereafter becoming due, nor from the lien of any such subsequent assessment, which lien shall have the same effect and be enforced in the same manner as provided herein.
ARTICLE 9: AMENDMENTS TO BYLAWS
Section 9.1. Amendments. These Bylaws may not be modified or amended except by vote of at least three quarters (3/4) of the Lot Owners; provided, however, that until the expiration of the Declarant control period, no Section of these Bylaws may be amended in any respect without the prior written consent of the Declarant. All amendments to the Bylaws shall be prepared and recorded by the Secretary.
ARTICLE 10: MISCELLANEOUS
Section 10.1. Notices. All notices, demands, bills, statements or other communications, under these Bylaws shall be in writing and shall be deemed to have been duly given when delivered personally or mailed by United States mail, postage pre-paid or if notification is of a default or lien, mailed by registered or certified United States mail, return receipt requested, postage pre-paid, (i) if to a Lot Owner, at the address which the Lot Owner shall designate in writing and file with the Secretary or, (ii) if no such address is designated, at the address of the Lot of such Lot Owner, or (iii) if to the Association, the Board of Directors or the Managing Agent, at the principal office of the Managing Agent or at such other address as shall be designated by notice in writing to the Lot Owners pursuant to the Section. If a Lot is owned by more than one Person, each such Person who so designates an address in writing to the Secretary shall be entitled to receive all notices.
Section 10.2. Captions. The captions herein are inserted only as a matter of convenience and for reference and in no way define, limit, or describe the scope of these Bylaws or the intent of any provision thereof.
Section 10.3. Gender. The use of the masculine gender in these Bylaws shall be deemed to include the feminine and neuter genders and the use of the singular shall be deemed to include plural, and vice versa, whenever the context so requires.
Section 10.4. Construction. These Bylaws shall be interpreted according to the laws of the State of Virginia.