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This page contains
photos (click here to see them) and
legal
documents digitized by Optical Character
Recognition with some
typographic flaws but clear
Meaning.
1. 1983 deed
where Plater promises at Book 150 p.163 par. b) to impose "similar"
covenantsto those on most of the rest of Calmes Neck. Note: this is one of
several
dees in which the promise is made by Plater in
identical language in 1983
2.
1994 Deed of Point by Plater to Shenandoah University;
3.
1995 Deed of Point by S.U. to Folds' Imperial Properties;
4. Folds Lawyer's 1995 opinion that the
covenants will apply to the Point;
5. Pruntel, Pullman
exempt from latest amendments
6. Draft
deeds of covenants Folds/O'Hare would attach to the Point -- but not Kirk lot
7.
January, 2005 version of Folds/O'Hare proposed draft deeds for the Point
8. April, 2005 Version of Folds/O'Hare
proposed draft deeds for the Point
9. November,
2005 opinion by CNPOA attorney Tyson Gilpin that Calmes Neck
covenants were applied to the MacDougall
whether lots were sold by the owner
of the tract or not.
(Note by page administrator Pye Chamberlayne: This may be moot because the only
two living signatories of the 1967 deed applying the covenants to the Macdougall
tract have signed an affidavit say that it was their intention that the
covenants apply only after a lot was sold from the tract.)
10. Covenants
(annotated in red by Pye
Chamberlayne, administrator of this page)
registered at the courthouse by Folds covering five lots at the Point.
11. Deed of first lot sold to Steven and
Kathleen Kiepe, referencing the covenants referred to above
1983 deed from Double E to Dick Plater of the Point and the Ridge.
150 - 161
4/21/83
Mailed: 5/27/83.
To: H. K. Benham, III, Esq., Atty,
P. 0. Box 809,
Winchester, Va. 22601
THIS DEED AND DEED OF PARTIAL RELEASE made and
dated
this 22 day of APRIL 1983, by and between DOUBLE
E LAND
AND CATTLE COMPANY, a Virginia corporation, party of the
first
part; RICHARD C. PLATER, JR. party of the second part;
A. GARLAND
WILLIAMS. Trustee, party of the third part; and FRANCES
C. ENDICOTT
Assignee, lienholder, party of the fourth part.
WITNESSETH: That for and in consideration of
the sum
of Ten Dollars ($10.00) and other good and valuable
consideration
the receipt of all of which is hereby acknowledged, the
party of
the first part does hereby grant, bargain, sell and
convey with
general warranty of title unto the party of the second
part.
his heirs or assigns, the following described property
and appur-
tenances thereunto belonging:
That certain lot or parcel of land
lying and being situate in Chapel Magis-
terial District, Clarke County, Virginia,
designated as Lot 63 on a plat of Calmes
Neck Estates, which is recorded in Clarke
County Circuit Court's Office in Deed Book
58, at Page 506 and being the same lot
acquired by the party of the first part
by deed of record in the aforesaid Clerk's
Office in Deed Book 75, at Page 167.
The party of the first part does further
grant and convey with general warranty of
title
to the party of the second part a non-
exclusive right of way over and along all
roads
within the subdivision known as Calmes Neck
Estates
and more particularly described on the
aforesaid
plats of record in Deed Book 58. at Page 506
and
in Deed Book 125, at Page 684. The
conveyance of
the lots described herein include the 50 foot
right
of way from the same to State Route 606.
The party of the first part does also remise,
remit
and quitclaim to the party of the second
part, any
and all interest that it has in and to the
land
lying between the low water mark of the
Shenandoah
River and boundary lines of the lot conveyed
hereby
that borders on the Shenandoah River.
150-162
The party of the first part further reserves
for the
benefit of lots 1, 2. 3, 10, 11, 12, 14, 15,
16, 17,
18. 30, 31. 73, 74, 75. 76. 77, 78, 79, 80,
81, 82,
83, 85. 86, 88. 89, 93. 94, 95; for the
benefit of the
280.66 acre tract mentioned above; and for
the benefit
of all lots in the Calmes Neck Subdivision,
including
the lot conveyed hereby, the right to use
the swimming
pool, the nearby picnic area, the beach area
and the
boat dock and to walk the trail along the
Shenandoah
River, all more particularly described on
the attached
plat. The right to use reserved hereby
shall be exer-
cised in such a manner as to protect and
preserve the
natural vegetation and wildlife of the area,
to maintain
the peace and quiet of the area and to
maintain the
facilities in a good and clean
condition.
The reservation further is subject to the
right of the
Association to be created as set forth
hereinafter, to
regulate the use of said facilities, area
and trails and
the use of the same by the owners of lots
shall be at
their own risk.
The reservation as to the right to use the
swimming
pool area is subject to the duty of the
Property Owners
Association or the users of the facilities,
until such
Association is in existence to purchase
liability
insurance from a reputable corporate insurer
covering
the Grantees, or their successors in title,
with limits
of liability not less than Five Hundred
Thousand
Dollars ($500,000.00). The reservation as
to the right
to use the swimming pool and the pool area
shall ter-
minate at such time as (1) the pool or pool
area is not
regularly used by lot owners or (2) is not
maintained as
required by this paragraph or the required
liability
insurance coverage is not maintained.
The party of the first part agrees to
undertake to create
a Property Owners Association consisting of
only the property
owners in Calmes Neck Subdivision and the
owner of the280.66 acre
parcel mentioned above to assume the
responsibility for main-
taining the facilities (the swimming pool,
picnic area, beach area
and boat dock) in good and clean condition
and to regulate the
facilities and trails so as to protect and
preserve the natural
vegetation, wildlife, and peace and quiet of
the area.
It is understood that the
reservation by the party
of the first part herein of the use of such
trails and
facilities shall impose no responsibility
nor duty on the
part of the party of the second part to
maintain such
facilities and trails and the use of same by
the owners of
lots shall be at their own risk.
-2-
150-163
The party of the second part
joins in the execution of
this deed to make the following
covenants which shall be deemed
covenants real to run with the land he
is acquiring.
(a) The party of the second
part covenants that the
property he is acquiring hereby shall
be used only for resi-
dential, recreational and agricultural
purposes or for any pur-
pose permitted at least one of the lot
owners in the Calmes Neck
Subdivision.
(b) The party of the second
part further covenants
that in the event he conveys any of the
Calmes Neck Subdivision
lot acquired hereby as individual lots
that he will place
covenants and restrictions against said
lots similar to
those placed against the majority of
the lots in the Calmes
Neck Subdivision at the time of
conveyance.
The party of the second part
takes the property
conveyed hereby subject to the
obligation to pay the following
charges for the repair and maintenance
of the roads within
the subdivision and the 50 foot right
of way leading to
Route 606 and to the repair and
maintenance of the recreational
facilities described above, to-wit:
(a) One "annual charge" for
all lots in Calmes
Neck Subdivision owned by the party of
the second part, not
improved by an office or a residence,
and
(b) One "annual charge"
for each lot in Calmes
Neck Subdivision on which there is an
office or residence.
This conveyance is made
subject to all duly recorded
and enforceable restrictions, easements
and rights of way.
The party of the first part
covenants that it has
a right to convey such property to the
party of the second
part; that it has done no other act to
encumber said property.
that it will execute such further
assurances of title to
-3-
150 -
164
said property as may be requisite; that it is seized in
fee
simple of the property conveyed; that the party of
the
second part shall have quiet possession of said
property
free from all encumbrances.
WHEREAS, by deed of trust dated January 20,
1960
and recorded in the Office of the Clerk of the Circuit
Court
of Clarke County, Virginia in Deed Book 58, at Page 245
in
order to secure the repayment of an obligation of
Twenty-
Five Thousand Dollars ($25,000.00) as mentioned in said
deed
of trust, as Bond No. 2, the party of the first part
did grant
and convey unto the party of the third part the
property more
particularly described in said deed of trust to which
reference
is hereby made; and
WHEREAS, Frances C. Endicott has become the
holder of
the note evidencing the aforesaid obligation; and
WHEREAS, a part of the indebtedness described
above
has been paid and the party of the first part requests a
release
deed releasing the hereindescribed property from the
lien of the
deed of trust referred to above.
NOW, THEREFORE. THIS DEED OF PARTIAL RELEASE
WITNESSETH:
That in consideration of the premises and of the further
sum of
Five Dollars ($5.00) to the party of the third part cash
in hand
paid by the party of the first part and at the request
of
the party of the fourth part hereof, the holder of the
indebtedness
described above, the party of the third part does hereby
release
and quitclaim unto the party of the second part all of
the
hereindescribed property.
The party of the fourth part as beneficiary on
said
deed of trust and holder of the obligation secured
thereby joins
in the execution of this instrument as evidence of her
assent
to the terms hereof, but it is expressly understood that
the
-4-
150-165
release of the property described herein does not
release the
remaining property and the lien of said deed of trust
shall
continue in full force and effect as to such property.
.
WITNESS the following signatures and seals:
standard signature block follows
2. Plater deed of Point to Shenandoah University
Mailed to
Benjamin Butler, Atty.
P.O.Box 2097, Winchester,Va.22604
TAX PURPOSES:
1460 University Dr.
Winchester,Va.22601 Book 244 Page 129
THIS DEED OF GIFT made and dated this 26th day of
May, 1994, by and between Richard C. Plater, Jr. and Pamela R.
Plater, his wife, hereinafter referred to as Grantors, and
Shenandoah University, a Virginia corporation. Trustee of tha
Richard C. Plater, Jr. Charitable Remainder Unitrust,-
hereinafter referred to as Grantee.
WITNESSETH: That for and in consideration of the
sum of Ten Dollars ($10.00), cash in hand paid. and other
valuable consideration, the receipt of which is hereby
acknowledged, the Grantors do hereby give, grant and convey,
with Special Warranty, unto the said Trustee of said trust,
the following described property including any improvements,
rights of way. easements and appurtenances thereunto belonging
located in Clarke County, Virginia (the "Property"):
All of that certain lot
or parcel of
land, lying and being situate
in the
Chapel Magisterial District,
Clarke
County, Virginia, lying on the
east side
of the Shenandoah River,
containing
107.780 acres, more or less,
and being the
remaining portion of a tract
of land, more
particularly described as
117.773 acres,
more or less. on that certain
plat of
vacation dated August 5. 1985,
revised
August 29, 1985 and further
revised
September 12, 1985 attached to
and made a
part of that certain
resolution of the
Board of Supervisors of Clarke
County,
Virginia, dated October 15,
1985, recorded
in the Office of the Clerk of
the Circuit
Court of Clarke County,
Virginia, in Deed
Book 164 at Page 710, after
deducting
therefrom that certain tract
containing
9.993 acres conveyed by deed
dated
February 21, 1994 to Calmes
Neck Property
Owners Association, a Virginia
corporation, recorded in the
aforesaid
Clerk's Office in Deed Book
242 at Page
14. The Property conveyed
hereby is a portion of those certain lots
acquired by the
grantor herein by deeds from Double E
Land and Cattle Company, a
Virginia
corporation, dated April 15,
1983, April
15, 1983, April 22, 1983,
recorded in the
aforesaid Clerk's Office in
Deed Book 150
at Page 5, Deed Book 150 at
Page 9, Deed
Book 150 at Page 161,
respectively; and by
Deed from Mary Jacobson,
single, dated
November 30, 1984. recorded in
the
aforesaid Clerk's Office in
Deed Book 158
at Page 710.
Book 244 Page
130
This conveyance is made to the said Trustee for the
uses and
purposes set forth herein and in the Trust Agreement
dated May 26,
1994.
Full power and authority are hereby granted to the
Trustee, and
his successors, to protect and conserve the
property; to
sell, contract to sell and grant options to
purchase the
property, and any right, title, or interest
therein on
any terms; to exchange the property or any part
thereof for
any other real estate or personal property upon
any terms; to
convey the property by deed to any grantee, with
or without consideration; to
mortgage, pledge or otherwise
encumber the
property or any part thereof; to lease, contract
to lease,
grant options to lease and renew, extend, amend and
otherwise
modify leases on the property or any part thereof
from time to
time, for any period of time, for any rental and
upon any
other terms and conditions; and to release, convey,
or assign any
other right, title, or interest whatsoever in
the property
or any part thereof.
No party dealing with the Trustee, or his
successors,
in relation to the property in any manner
whatsoever,
and no party to whom the property or any part
thereof or
any interest therein shall be conveyed, contracted
to be sold,
leased or mortgaged by the Trustee shall be
obliged to:
(a) See to the application for any purchase money,
rent, or
money borrowed or otherwise advanced on the property;
(b) See that the terms of the Trust have been
complied
with;
(c) Inquire into the authority, necessity, or
expediency of
any act of the Trustee; and,
(d) Be privileged to inquire into any of the terms
of the Trust
Agreement.
-2-
Book 244 page 131
Every deed, mortgage, lease, or other instrument
executed by the Trustee in relation to the property shall be
conclusive evidence in favor of every person claiming any
right, title, or interest thereunder:
(a)
That at the time of the delivery thereof this
trust was in full force and effect,
(b)
That such instrument was executed in accordance
with
the terms and conditions hereof and of the Trust
Agreement and is binding upon all beneficiaries thereunder,
(c)
That the Trustee was duly authorized and
empowered to execute and deliver every such instrument, and
(d)
If a conveyance has been made to a successor or
successors in trust, or an appointment of a successor or
successors has been made, that such successor or successors
have
been properly appointed and are fully vested with all the
title, estate, rights, powers, duties, and obligations of its,
her,
his, or their predecessors in trust.
Reference is here made to the aforesaid instruments
and
the attachments and the references therein contained for ao
further and more particular description of the property hereby
conveyed.
The
grantors also give, grant and convey unto the
Trustee of said trust any and all of their contingent
reversionary right or interest reserved in that certain deed
dated February 21, 1994, recorded in the aforesaid Clerk's
Office in Deed Book 242 at Page 14.
Pamela R. Plater joins in this Deed for the sole
purpose of consenting to the conveyance of the Property, and
hereby forever conveys, releases and waives any marital rights
or
right to claim an elective share in the Property as part of
her
spouse's augmented estate pursuant to Section 64.1-13, gt
sea.. Code of Virginia (1950), as amended, and gives no
covenant or warranty of title to the Property hereby conveyed.
-3-
|
This conveyance is made subject to conditions, valid
restrictions and rights of way of record as Contained in
the
instruments forming the chain of title to the property.
WITNESS the following signatures and seals:
Standard signature block follows |
3. Deed of Point from Shenandoah University to Folds' Imperial Properties
THIS DEED made and
dated this 31st day of August,
1995, by and between SHENANDOAH
University, trustee of the
RICHARD C. PLATER, JR.
CHARITABLE REMAINDER UNITRUST dated May
20. 1994, party of the first
part, hereinafter called the
Grantor, and IMPERIAL
PROPERTIES,INC. a West Virginia Corporation,
party of the second part,
hereinafter called the Grantee.
WITNESSETH: That for
and in consideration of the
sum of Ten ($10.00) Dollars,
cash in hand paid, and other good
and valuable consideration, the
receipt of which is hereby
acknowledged, the Grantor does
hereby grant and convey with
Special Warranty of title unto
the Grantee, in fee simple
absolute, all of that certain
lot or parcel of land, lying and
being situate in Chapel
Magisterial District, Clarke County,
Virginia, lying on the East
side of the Shenandoah River
containing 107.780 Acres, more
or less, and being the same
property conveyed to the
Grantor herein by Deed of Gift, dated
May 26, 1994, from Richard C.
Plater, Jr., et ux, of record in
the Office of the Clerk of the
Circuit Court of Clarke County,
Virginia in Deed Book 244 at
Page 129. Reference is made to
the aforesaid deed of gift for
a more particular description of
the property herein conveyed.
Book 255 Page 795
This conveyance is made subject
to all rights of way and restrictions of record affection
the subject property.
Standard signature block
Deed of Point from S. U. to
Folds' Imperial Properties
THIS DEED made and
dated this 31st day of August,
1995, by and between SHENANDOAH
University, trustee of the
RICHARD C. PLATER, JR.
CHARITABLE REMAINDER UNITRUST dated May
20. 1994, party of the first
part, hereinafter called the
Grantor, and IMPERIAL
PROPERTIES,INC. a West Virginia Corporation,
party of the second part,
hereinafter called the Grantee.
WITNESSETH: That for
and in consideration of the
sum of Ten ($10.00) Dollars,
cash in hand paid, and other good
and valuable consideration, the
receipt of which is hereby
acknowledged, the Grantor does
hereby grant and convey with
Special Warranty of title unto
the Grantee, in fee simple
absolute, all of that certain
lot or parcel of land, lying and
being situate in Chapel
Magisterial District, Clarke County,
Virginia, lying on the East
side of the Shenandoah River
containing 107.780 Acres, more
or less, and being the same
property conveyed to the
Grantor herein by Deed of Gift, dated
May 26, 1994, from Richard C.
Plater, Jr., et ux, of record in
the Office of the Clerk of the
Circuit Court of Clarke County,
Virginia in Deed Book 244 at
Page 129. Reference is made to
the aforesaid deed of gift for
a more particular description of
the property herein conveyed.
Book 255 Page 795
This conveyance is made subject
to all rights of way and restrictions of record
affecting the subject property.
Standard signature block
4. 1995 opinion from Folds' lawyer that
Covenants must apply to the Point
LAW OFFICES
KUYKENDALL, JOHNSTON, McKEE & BUTLER,
P.JLC
112 SOUTH CAMERON STREET
WINCHESTER, VIRGINIA 22601
Telephone (540)662‑3486
Facsimile (540)722‑3787
November 14, 1995
John E. Folds, President
Imperial Properties, Inc.
2410 Oakmont Court
Oakton, Virginia 22124.
Re: My File No. 6324(ESTATES‑PLATER)
Shenandoah University, Trustee (Plater)
Imperial Properties, Inc.
Dear John:
You have requested that I review the
Declaration of
Amended Covenants which appears in the Clerk's
Office of the
Circuit Court of Clarke County in Deed Book 223 at
Page 765 as to
whether the same applies to the 107 acres, more or
less, which
you purchased from Shenandoah University, Trustee
under the
Plater Trust.
In my opinion, these restrictive
covenants contained in
the Declaration of Amended Covenants do not apply
at the present
time to the 107 acres, but rather it is an
agreement that should
you in the future sell off lots that the lots being
sold off will
have restrictive covenants at least as restrictive
as those which
were placed upon the Calmes Neck Lots which were
not vacated by
Clarke County.
My analysis in this situation commences
with the deed
from Double E Land and Cattle Company to Richard C.
Plater, Jr.,
which appears of record in Deed Book 150 at Page 9.
The deed
dated April 15, 1983 summarizes the past action
with respect to
the Calmes Neck Lots 45. 48, 50 through 62.
inclusive, and
provides at paragraph 3 of that deed in summary
that the property
would be used for residential, recreational, and
agricultural
purposes only, and further covenants that in the
event that
Plater conveyed lots as individual lots he 'would
place
restrictive covenants against the same similar to
those owned by
"majority of the lots in the Calmes Neck
Subdivision at the time
of the conveyance ."
John E. Folds, President
Imperial Properties, Inc.
November 14, 1995
Page Two
You will also note that this deed
provides for the
annual charge payable to the homeowners
association This is the
genesis of the "threetimes the normal annual
assessment" and
Which, of course, yields you " three memberships
and three votes in
the association. I enclose a copy of that deed
for your
reference.
‑
The Declaration of Amended Covenants
appearing in Deed
Book 223 at page 765 appear to be Plater's
commitment to the
specific covenants which would be placed against
the land should
the same be subdivided and sold out as lots.
Also enclosed herewith is a copy of
the deed from
Richard C. Plater, Jr. to the Calmes Neck Property
Owners
Association which apparently was made in
settlement of a chancery
suit in Clarke County under Chancery No. 90‑3014.
I have not
reviewed that lawsuit, but I will go to Berryville
and review the
same if it becomes necessary, it is important to
note that this
deed places certain restrictions on the 9.9 acre
tract conveyed
to the Calmes Neck Property Owners Association and
gives an
important contingent reversionary interest in that
9.9 acres to
imperial Properties, Inc. as the successor to
Plater.
I hope this will answer your
questions.
Very truly yours,
KUYKENKDALL, JOHNSTON,
McKEE & BUTLER,
P..L.C.
(Here there=s
a legible signature from Benjamin M. Butler)
BMB:dhc
Enclosures
5. Pye's attorney
Tyson Gilpin's opinion that the
most recent amendments to
the CN covenants
do not apply to Pullman or
Pruntel. This opinion was paid for
by Pye, Randy and Joe
Nolter:
MEMORANDUM
TO: Mr. Joe Nolter
Board of Directors
Calmes Neck Property Owners
Association
130 Robin Lane
Boyce, VA 22620
FROM: M. Tyson Gilpin, Jr., Esquire
DATE: December 12, 2002
RE: Covenants of the Calmes Neck Property
Owners
Association (CNPOA) filed in the
Office of the
Clerk of the Circuit Court for
Clarke County
in Deed Book 223 at Page 765
|
I read a 2-page “Statement of Work” in reference to the
above-captioned recordation. I have not read for some time any documents that
set up the CNPOA or that have set out any procedures it is to follow. In my
experience any such documents would not be likely to change the legal
consequences of the facts presented.
- What is the legal validity of the signatures of Jim
Clark and Rachel Osborn, as they apply to the Calmes Neck covenants amendment
filed on June 14, 2002 in Clarke County courthouse?
The signatures are legally valid
and the amendments valid except they do not apply to the successors in interest
to Jim Clark and Rachel Osborn of the respective lot of each.
- Given the status of Jim Clark and Rachel Osborn
signatures, are the Calmes Neck amended covenants, as filed in the Clarke
County courthouse, legally legitimate?
Same answer as in #1 above.
- If in your opinion the new covenants as filed are not
valid, what, if anything, could make them valid? If nothing can, would the
previous covenants remain in effect until 2012?
The Clark and Osborn lots are not
affected by the amendments and nothing later can reverse this other than consent
by the owners of the lots to be bound.
The one basic immutable principal of law in this case is
that an innocent purchaser is not bound by restrictions not of record and of
which he had no notice. From this basic rule we move into areas where the
effects are less clear. I will mention a few of the possible ramifications to
illustrate this. One can go into great detail here and litigation in this area
of the law can be very protracted.
- Are future purchasers from the successors to Jim Clark
and Rachel Osborn bound by the newly recorded amendments?
The argument would be that they
would have been on notice of the amendment before their purchase because they
were on record before the purchase.
The counter argument and the
stronger one by far is that, for example, Jim Clark’s 2nd successor
should not be burdened with the amendment because Jim Clark’s immediate
successor was not. Further, if Jim Clark’s 2nd successor is burdened
then, in effect, the 1st successor is also burdened as the
prospective 2nd successor may not purchase if this was the rule
knowing he would be bound. This affects the first successor unfairly as he had
no notice.
- Are successors who inherit treated differently from
purchasers?
The way I read the law they are
treated the same. If the title passes on record (a Will put to record) before
the amendment is recorded and after an owner has voted and dies, then the result
should be the same even if no purchase money changed hands. However, this issue
is not as clear to me.
The most serious problem, affecting all property owners, is
maintenance of the integrity of the covenants. Courts will not enforce
covenants unless they have been uniformly followed. When a covenant is imposed
piecemeal, on some lots and not on others, the particular covenant (not all the
covenants) may not be enforced by a Court.
I do not know how a Court would view any particular
covenant under the facts presented. If enough lots escape the new restrictions
because of the technicalities you show and there are other lots that are in fact
already in violation then the combination may well cause a Court to refuse to
enforce that particular covenant on all the lots.
Apparently a new vote and recordation can not be done now.
The best remedy would be for the lots affected to consent and subject themselves
to the amendments on record.
Enforcement of covenants is expensive. It has legal
subtleties enough. Further, it is fact based primarily so this adds further
problems to any litigation.
|
6. Draft deed that would impose covenants very
similar to the majority of
the rest of the covenants on Calmes Neck to the
properties at the Point --
with the exception of the property Folds proposes to
sell to Tim Kirk.
|
11-18-04
02:21pm From-KUYKEDALL JOHNSTON MCKEE BUTLER P L C
+5407223787 T-981 P.02/04 F-671
DRAFT -
THIS DEED OF DEDICATION AND DECLARATION
OF COVENANTS,
CONDITIONS AND RESTRICTIONS, made and
dated this ___ day of__________,
2004, by and between JAMES A. O'HARE and
JAMES P. O’HARE. parties of the first part,
hereinafter called The DECLARANT (even
though more than one) (Grantor for indexing purposes),
and CLARKE COUNTY. VIRGINIA, party of
the second part (Grantee for indexing purposes.
WHEREAS, the Declarant is the owner of a
certain property acquired by Deed of Vacation
of Plat and Correction to Boundary Line
Agreement, recorded on March 29,2004 in the Clerk's
Office of the Circuit Court of Clark
County, Virginia, in Deed Book 402 at Page 446 (the
"Property").
WHEREAS, the Declarant desires to
subdivide the Property into lots to be designated
"Major Subdivision of the Land of James
A. O'Hare and James P. O'Hare", and more particularly
described on the plat of survey made by
Mark D. Smith, L.S., dated the 25th day of October, 2004,
attached hereto and by this reference
made a part hereof as if set out in full; and
WHEREAS, it is the intent of the party
of the first part to dedicate the said land into
subdivided lots and to subject said
property to certain easements, restrictions, covenants and
conditions for the purpose of protecting
the value and desirability of said property, all of which
restrictions shall run with the property
or any part thereof and shall inure to the benefit of each
owner thereof.
NOW THEREFORE WITNESSETH: That for and
in consideration of the aforesaid,
the Declarant does hereby so divide that
certain land containing 98.0759 acres, into subdivided lots
pursuant to the Clarke County
Subdivision Ordinance and as shown on that certain plat of survey
drawn by Mark D. Smith, L.S., dated the
25th day of October, 2004, and which is by this reference
made a part hereof as if set out in
full.
The Declarant hereby subdivides the
tracts into lots as shown on the aforesaid plat and
imposes hereinafter described covenants,
conditions, reservations and restrictions upon the lots,
all of which are to be construed as
restrictive covenants running with the title to the lots and shall
Page I of 3 |
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• 11-18-04
02:21pm From-KUYKEDALL JOHNSTON MCKEE BUTLER P L C
+5407223787 T-981 P.03/04 F-671
DRAFT
be binding upon all subsequent owners
and enforceable by the owners of all lots in the subdivision
known as Calmes Neck Subdivision.
This conveyance is further made subject
to the following restrictive covenants which shall
be deemed real covenants running with
the land and the grantees in each Deed shall be subject to
the same and agree to bind themselves
and their successors in interest to the same by the acceptance
of the Deed and which restrictive
covenants are as follows:
A. Any dwelling built on a lot shall
meet the following size requirements, the square
footage is for the finished space above
grade, excluding garages, porches, verandas, carports and
similar structures:
i) If the dwelling is to be
one story, it shall have a minimum of 1,600 square
feet and if the dwelling is to be two
stories, it shall have a minimum of 2,400 square feet.
ii) The lots shall always be
zoned for agricultural activities and related
residences upon the same and the Calmes
Neck Property Owners Association may not change such
usage.
B. No lot shall have decorative
fencing placed upon the same.
C. No modular housing or
manufactured homes shall be placed upon any lot at any
time.
D. No hunting shall be allowed on
any lot within 100 yards of the property line of any
lot adjoining the existing Calmes Neck
Subdivision, including any common area owned by the Calmes Neck Property
Owners Association.
E. All of the lots shall
be subject to the protective covenants for the Calmes Neck
Estates, of record in the Clerk's
Office of the Circuit Court of Clarke County, Virginia, in Deed
Book 352 at Page 48, et seq.,
and which are by this reference made apart hereof as if set out in full.
Each lot shall be subject to the
assessments imposed by the restrictive covenants contained in the
Calmes Neck Estates Restrictive
Covenants, of record in the aforesaid Clerk's Office in Deed
Book 352 at Page 48, et seq., to
the end that these lots shall become part of the Calmes Neck
Page 2 of 3 |
|
11-18-04 02:21pm
From-KUYKEDALL JOHNSTON MCKEE BUTLER P L C +5407223787
T-981 P.04/04 F-671
DRAFT
Estates. The Calmes Neck Property Owners
Association shall maintain all roads providing
ingress/egress to said lots.
F. Conservation Buffer. All lots
shall maintain a 25-foot conservation buffer
running along all boundary lines. Within
said buffer line there shall be no removal of trees in
excess of four (4) inches in diameter,
except to allow for access to the property, installation of
utilities and perimeter enclosures
(fencing) as further explained in this covenant. Such perimeter —
enclosure shall be constructed so as to
provide for minimal removal of timber. Additionally, said
buffer can be interrupted by an aesthetic
view field not to exceed 50-feet in width. Furthermore,
these covenants shall allow for the
removal of any tree which presents a risk to either life, limb or
property.
G. Any lot which may be part of the
existing walking trail along the Shenandoah River
as outlined in Deed dated April 21, 1983,
of record in the aforesaid Clerk's Office in Deed Book 150 at Page 161,
shall remain subject to said trail and any rights which persons have with
respect to the same.
The Subdivision of the above land is with
the free consent and in accordance with the desire
of the undersigned Declarants and in
conformity with the Clarke County Subdivision Ordinance
and the Virginia Land Subdivision Act.
DECLARANTS:
James A. O'Hare
James P. O'Hare
(in handwriting:
“notary to be attached”)
Page 3 of 3 |
7. Jan. 17 version of Folds/O'Hare proposed
covenants for Calmes Neck's Point:
|
|
KUYKENDALL, JOHNSTON,
MCKEE & BUTLER, PMC.
112 SOUTH CAMERON STREET
P.O. DRAWER 2097
WINCHESTER, VIRGINIA 22604.1297
(540)662.3486
January 17, 2005
RE: CALMES NECK ESTATES
My File 11287
Dear John:
I have checked the records In the Clerk's
Office of the Circuit Court of Clarke County, Virginia,
relative to the restrictions on the Calmes
Neck Subdivision and it would appear that the original plat was
recorded in the Clerk's Office in Deed Book
58 at Page 506. Subsequently, In 1985, Double E Land and
Cattle Company vacated the portion of the
land now owned by North American Land Corporation,
exclusive of Lot 55, Calmes Neck.
(Following, in
green, are remarks made on April 7, 2005 by Pye Chamberlayne, a member of
the
Calmes Neck Property Owners Association Board of Directors:
The
statement about Double E above is incorrect. Double E sold that land in 1983
to R. Plater. Plater vacated
the Plat after he undertook as a matter of
contract recorded in several places including Deed Book 150 P. 163
to do
the following:
The party of the second part (R. Plater) further covenants that in the
event he conveys any
of the Calmes Neck Subdivision lot acquired hereby as
individual lots that he will place covenants and
restrictions against said
lots similar to those placed against the majority of the lots in the Calmes
Neck
Subdivision at the time of conveyance.)
I am enclosing herewith a copy of that plat
which appears in Deed Book 164 at Page 710.
Thereafter, the Calmes Neck Property Owners
Association on October 26, 1991 filed a set of
restrictions in the Clerk's Office of Clarke
County in Deed Book 223 at Page 765, which applied to all of
the lot»s in Deed Book 58 at Page 507. You
will remember, however, that by that point in time, the plat
had been vacated with reference to the land
ultimately owned by North American. I also could not
ascertain from that document that Double E
Land and Cattle Company had signed the Amendment to the
restriction; however, it does provide that
Double E had the ability to approve plans for structures.
Finally, and more recent, I am sending you
the Declaration of Amended Covenants which was
dated November 3, 2001 and appears of record
in Deed Book 352 at Page 48. I would direct your
attention to Section 3 concerning buildings
and plans and would point out to you that in Section 3(d) the
Association has the ability to approve or
disapprove plans on a sixty day basis. I have therefore changed
Section E, page 2, to provide that the
Property Owners do not have the right of dwelling design.
I have forwarded a copy to Tyson Gilpin for
his comments.
Very truly yours,
(Signed: Benjamin Butler)
01-17-05 11:27 am
From-KUYKEDALL JOHNSTON MCKEE BUTLER P L C +5407223787 T-522 P.03/06
F-900
THIS DEED OF DEDICATION AND DECLARATION OF COVENANTS,
CONDITIONS AND RESTRICTIONS, made and dated this ___ day of——————————,
2004, by and between JAMES A. O'HARE and JAMES P. O’HARE, parties of the
first part,
hereinafter called the DECLARANT (even though more than one) (Grantor for
indexing purposes),
and CLARKE COUNTY. VIRGINIA, party of the second part (Grantee for indexing
purposes.
WHEREAS, the Declarant is the owner of a certain property acquired by Deed
of Vacation
of Plat and Correction to Boundary Line Agreement, recorded on March 29,
2004 in the Clerk's
Office, of the Circuit Court of Clark County, Virginia, in Deed Book 402 at
Page 446 (the
"Property").
WHEREAS, the Declarant desires to subdivide the Property into lots to be
designated
"Major Subdivision of the Land of James A. O'Hare and James P. O'Hare", and
more particularly
described on the plat of survey made by Mark D. Smith, L.S., dated the 25th
day of October, 2004,
attached hereto and by this reference made a part hereof as if set out in
full; and
WHEREAS, it is the intent of the party of the first part to dedicate the
said land into
subdivided lots and to subject said property to certain easements,
restrictions, covenants and
conditions for the purpose of protecting the value and desirability of said
property, all of which
restricions shall run with the property or any part thereof and Shall Inure
to the
benefit of each owner
thereof.
NOW THEREFORE WITTNESSETH: That for and in consideration of the aforesaid,
the
Declarant does hereby so divide that certain land containing 98.0759 acres,
into subdivided lots
pursuant to the Clarke County Subdivision Ordinance and as shown on that
certain plat of survey
drawn by Mark D. Smith, L.S., dated the 25th day of October, 2004, and which
is by this reference
made a part hereof as if set out in full.
Page 1 of 4
01-17-05 11:27am From-KUYKEDALL JOHNSTON
MCKEE BUTLER P L C +54072Z3787 T-522 P.04/06 P-900
The Declarant hereby subdivides the tracts
into lots as shown on the aforesaid plat and
imposes hereinafter described covenants,
conditions, reservations and restrictions upon the lots, all
of which are to be construed as restrictive
covenants running with the title to the lots and shall be
binding upon all subsequent owners and
enforceable by the owners of all lots in the subdivision
known as Calmes Neck Subdivision.
This conveyance is further made subject to
the following restrictive covenants which shall
be deemed real covenants running with the
land and the grantees in each Deed shall be subject to the
same and agree to bind themselves and their
successors in interest to the same by the acceptance of
the Deed and which restrictive covenants are
as follows:
A. Any dwelling built on a lot shall meet
the following size requirements, the square
footage is for the finished space above
grade, excluding garages, porches, verandas, carports and
similar structures:
i) If the dwelling is to be one story, it
shall have a minimum of 1,600 square feet
and if the dwelling is to be two stories, it
shall have a minimum of 2,400 square feet.
ii) The lots shall always be zoned for
agricultural activities and related residences
upon the same and the Calmes Neck Property
Owners Association may not change such usage.
\
B. No lot shall have decorative fencing
placed upon the same.
C. No modular housing or manufactured
homes shall be placed upon any lot at any time.
D. No hunting shall be allowed on any lot
within 100 yards of the property line of any
lot adjoining the existing Calmes Neck
Subdivision, including any common area owned by the
Calrmes Neck Property Owners Association.
E. All of the lots shall be subject to the
protective covenants for the Calmes Neck
Estates, except Section 3 (a) through (d),
inclusive, which is of record in the Clerk's Office of the
Page 2 of 4
01-17-05
11:28am From KUYKEDALL JOHNSTON MCKEE BUTLER P L C
+5407223787 T-522 P.05/06 F-900
Circuit Court of Clarke County, Virginia. in
Deed Book 352 at Page 48, et seq. It is specifically
agreed that the area requirements contained
in this paragraph Section A above, shall apply to
the lotsof this subdivision and so long as the lot
owner has complied with the •minimum square
footage in
Section A above, there shall be no
requirements to submit building plans to the Calmcs Neck
Property Owners Association for approval.
Except as amended herein, the other Restrictive
Covenants are adopted by this reference and
made a part hereof as if set out in full. Each lot shall
be subject to the assessments imposed by the
restrictive covenants contained in the Calmcs Neck
Estates Restrictive Covenants, of record in
the aforesaid Clerk's Office m Deed Book 352 at
Page 48, et seq., to the end that
these lots shall become part of the Calmes Neck Estates. The
Calmes Neck Property Owners Association shall
maintain all roads providing ingress/egress
to said lots.
F. Conservation Buffer. All lots
shall maintain a 25-foot conservation buffer running
along all boundary lines. Within said buffer
line there shall be no removal of trees in excess of four
(4) inches in diameter, except to allow for
access to the property, installation of utilities and
perimeter enclosures (fencing) as further
explained in this covenant. Such perimeter enclosure shall
be constructed so as to provide for minimal
removal of timber. Additionally, said buffer can be
interrupted by an aesthetic view field not to
exceed 50-feet in width. Furthermore, these covenants
shall allow for the removal of any tree which
presents a risk to life, limb or property.
G. Any lot which may be part of the
existing walking trail along the Shenandoah River
as outlined in Deed dated April 21, 1983, of
record in the aforesaid Clerk's Office in Deed Book 150
at Page 161, shall remain subject to said
trail and any rights which persons have with respect to the
same.
Page 3 of 4
01-17-05
11:28am From-KUYKEDALL JOHNSTON MCKEE BUTLER P L C
+5407223787 T-522 P.06/08 F-900
'-
The Subdivision of the above land is with the
free consent and in accordance with the desire
of the undersigned Declarants and in
conformity with the Clarke County Subdivision Ordinance and
the Virginia Land Subdivision Act.
DECLARANTS:
____________________________________
James A. O’Hare
____________________________________
James P. O’Hare
(There are two blank, unsigned notary public boxes)
Page 4 of 4 |
| |
8. April 2005 version of of Folds/O'Hare proposed deeds for the point:
|
THIS DEED OF DEDICATION
AND DECLARATION OF COVENANTS, CONDITIONS,
AND RESTRICTIONS,
made and dated this___
day of _____ 2005, by and between James A. O’Hare and James P.
O’Hare, parties of the first part, hereinafter called the DECLARANT
(even though more than one) (Grantor for indexing purposes), and CLARKE
COUNTY, VIRGINIA, party of the second part (Grantee for indexing
purposes)
WHEREAS, the Declarant is the owner of
a certain property acquired by Deed of Vacation and Plat and Corrections of
Boundary Line Agreement, recorded on
March 29, 2004 in the Clerk’s Office of the Circuit Court of Clarke County,
Virginia, in Deed Book 402 a Page 446 (the “Property”).
WHEREAS, the Declarant desires to
subdivide the property into lots to be designated “Major Subdivision of the
Land of James A. O’Hare and James P. O’Hare,” and more particularly
described on the plat of a survey made by Mark D. Smith, L.S., dated the 25th
day of October, 2004, attached hereto and by this reference made a part
hereof as if set out in full; and,
WHEREAS, it is the intent of the party
of the first part to dedicate the said land into subdivided lots and to
subject said property to certain easements, restrictions, covenants, and
conditions for the purpose of protecting the value and desirability of said
property, all of which restrictions shall run with the property or any part
thereof and shall inure to the benefit of each owner thereof.
NOW THEREFORE WITNESSETH:
That for and in consideration of the aforesaid, the Declarant does hereby so
divided that certain land containing 98.0759 acres, into subdivided lots
pursuant to the Clarkee County Subdivision Ordinance and as shown on that
certain plat of survey drawn by Mark D. Smith, L. S., dated the 25th
day of October, 2004, and which is by this reference made a part hereof as
it set out in full.
The Declarant hereby subdivides the tracts
into lots as shown on the aforesaid plat and imposes hereinafter described
covenants, conditions, reservations, and restrictions upon the lots, all of
which are to be construed as restrictive covenants running with the title to
the lots and shall be biding upon all subsequent owners and enforceable by
the owners in the subdivision known as Calmes Neck Subdivision.
This conveyance is further made subject to the
following restrictive covenants which shall be deemed real covenants running
with the land and the grantees in each Deed shall be subject to the same and
agree to bind themselves and their successors in interest to the same by the
acceptance of the Deed and which restrictive covenants are as follows:
(A)
No lot may be resubdivided
(B)
Any Dwelling built on a lot shall meet the following requirements:
a.
The square footage above grade, excluding garages, porches, veranda,
carports and similar structures for a one story dwelling is shall have a
minimum of 1,600 square feet, and if the Dwelling is to be two stories, it
shall have a minimum of 2,400 square feet.
b.
The lot owner shall, 30 days prior to beginning construction, submit
his building plans to the Calmes Neck Property Owner’s Association
Architectural Review Committee for review and comment. After 30 days, or
upon receiving their review and comment, the lot owner may build his
residence provided it complies with the minimum square footage requirements
as set forth above. Approval of the Review Committee is for comment only
and the Committee’s approval is not a requirement to build.
c.
No Mobile Homes, Modular Homes, or Manufactured Homes may be built on
the lots.
(C)
The lots shall always be zoned for agricultural and residential
activities and related residences upon the same and the Calmes Neck Property
Owner’s Association may not change such usage.
(D)
No lot shall have decorative fencing placed upon same.
(E)
No hunting shall be allowed on any lot within 100 yards of the
property line of any lot adjoining the existing Calmes Neck Subdivision,
including any common area owned by the Calmes Neck Property Owner’s
Association.
(F)
Conservation Buffer. All lots shall maintain a 25 foot conservation
buffer running along all boundary lines. Within said buffer line there
shall be no removal of trees in excess of four inches (4) in diameter,
except to allow for access to the property, installation of utilities and
perimeter enclosures (fencing) as further explained in this covenant. Such
perimeter enclosure shall be constructed so as to provide for minimal
removal of timber. Additionally, said buffer can be interrupted by an
aesthetic view field not to exceed 50 feet in width. Furthermore, these
covenants shall allow for the removal of any tree which presents a risk to
either life, limb, or property.
(G)
Any lot which may be part of the existing walking trail along the
Shenandoah River as outlines in Deed dated
April 21, 1983, of record in the aforesaid Clerk’s Office in Deed Book 150
at Page 161, shall remain subject to said trail and any rights which persons
have with respect to the same.
(H)
All of the lots shall be subject to the Protective Covenants for the
Calmes Neck Estates, except that they shall not be subject to Section 3 (a)
through (d) inclusively and all of Section 2 as it relates to Section 3,
which is of record in the Clerk’s Office of the Circuit Court of Clarke
County, Virginia, in Deed Book 352 at Page 48, et seq. Except as
amended herein and above, the other Restrictive Covenants are adopted by
this reference and made a part hereof as if set out in full. Each lot shall
be subject to the assessments imposed by the restrictive covenants contained
in the Calmes Neck Estate Restrictive Covenants, of record in the aforesaid
Clerk’s Office in Deed Book 352 at Page 48 et seq., to the end that
these lots shall become part of the Calmes Neck Estates provided that they
are afforded the same rights and privileges of like members.
The subdivision of the above
land is with the free consent and in accordance with the desire of the
undersigned Declarants and in conformity with the Clarke County Subdivision
Ordinance and the Virginia State Subdivision Act.
DECLARANTS
_____________________
James A. O’Hare
_____________________
James P. O’Hare
STATE OF _____________
CITY/COUNTY OF _______________, TO WIT:
I,
______________________________, a Notary Public in and for the State and
jurisdiction aforesaid, do and hereby certify that James A. O’Hare, whose
name is signed to the foregoing DEED OF DEDICATION, dated the ____
Day of _______, 2005 has personally appeared
before me and acknowledged the same in my State and jurisdiction aforesaid.
Given under my hand this ____
day of _______ 2005
My Commission
expires_______________________
_______________________
NOTARY PUBLIC
STATE OF _____________
CITY/COUNTY OF _______________, TO WIT:
I,
______________________________, a Notary Public in and for the State and
jurisdiction aforesaid, do and hereby certify that James A. O’Hare, whose
name is signed to the foregoing DEED OF DEDICATION, dated the ____
Day of _______, 2005 has personally appeared
before me and acknowledged the same in my State and jurisdiction aforesaid.
Given under my hand this ____
day of _______ 2005
My Commission
expires_______________________
_______________________
NOTARY PUBLIC
|
|
M. TYSON GILPIN, JR.
217 S. LOUDOUN STREET
ATTORNEY
WINCHESTER. VIRGINIA 22601
VOICE (540)678-1940
FACSIMILE (540) 678-9920
e-mail: mtgilpin@visuallink.com
MEMORANDUM
TO: CNPOA c/o Pye Chamberlayne
FROM: M. Tyson Gilpin, Jr., Esquire
RE: Legal opinion on language in a document signed by
or on behalf of
DOUBLE E. LAND AND CATTLE COMPANY and Gordon H.
MacDougall which is recorded in the Clarke County Land Records In Deed
Book 80 at page 168 et seq.
The language in question is as follows:
"The following covenants.. .are imposed upon.. .any and all
lots sold from the
land of Gordon H. MacDougall and shall be included either
specifically in the deed or by
reference to this deed is all subsequent deeds conveying any
of said lots, and shall run
with the land and be binding upon present and future owners
of all said lots."
The specific question is:
Does the language imply that the covenants do not apply to
the land before lots
are sold?
It certainly is an argument that can be made and I could not
say without question
which way a court would rule.
The better argument, in my opinion, is that the language
referenced states that
future lots are affected but does not expressly exclude the
present land.
The balance of the document indicates that the present tract
is immediately
affected and restricted. For example see paragraph #8 on
page 172 (copy attached with
mailed memorandum).
Looking at the entire context of the document, the better
argument is that the
specific language in question is the usual very common
boiler plate whereby covenants
are included in a document to be recorded in the chain of
title and to be notice to all
persons in the future interested in the property.
The language in question is often added to merely re-state
or express what the law
already holds, ie. the covenants recorded are notice to and
binding on future parties in
interest.
Since it is unusual to apply covenants only to future lots
and not to the present
"lot" my suggestion to any draftsman wishing to exclude the
present "lot" would be to
state this explicitly. This was not done.
Further, the Virginia Supreme Court has adopted the implied
reciprocal easement
theory. If a landowner conveys out lots with covenants from
a parent tract the Court will
imply that the parent tract is also immediately restricted
by the same covenants.
The salutary effect of this theory is very evident and
should be applied in the
instant case for the same reasons.
In other words the owners of the tract in question can not
violate all the covenants
and then deed out lots and hold the new owners to these same
covenants.
To list some further arguments along this line of reasoning:
1. Double E. Land and Cattle Company or MacDougall did
not express
any reason to be immediately excepted nor have they
regularly violated
the covenants as far as I know.
2. If the covenants are not in effect immediately then
all sorts of mischief
can occur i.e.:
a. Actions contrary to the covenants could
accumulate so that
when a lot is sold no Court would enforce any
covenant.
b. Lots may never be sold but lots could be
gifted or inherited.
c. Interests in condominiums or time shares
could be created and
the apparent clear intent of Double E Land and
Cattle Company
and MacDougall ignored.
These are suggestions of some of the surprises that may
arise if the land is not
immediately restricted.
Courts generally rule so as to stabilize and make matters
predictable.
Stepping back and looking at the issue of allowing hunting
on the MacDougall
tract generally it appears that it would be very difficult
to legally restrict hunting there.
Hunting there has been continuous over a long period of
time.
It should not be so difficult for a buyer to be comfortable
with assurances that this
was an activity that could not be taken away.
Any opinion expressed here may be affected by additional
documents presented
whether recorded or not.
Also, the ongoing actual use of the land may be a factor
requiring a modification
of any opinion.
|
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Book 456 Page 811
CALMES
NECK POINT
Restated Dedication of Plat and Declaration of
Protective Covenants
KNOW ALL MEN BY THESE PRESENTS: That the undersigned,
James A. 0'Hare and James P. O'Hare, Declarant, and Imperial
Properties, Inc., a Virginia corporation, additional Declarant,
hereinafter referred to collectively as "Declarant", do hereby
record these protective covenants for Calmes Neck Point lying
and being situated in the Springfield Magisterial District,
Clarke County, Virginia, and being more fully described on the
plat and survey of Calmes Neck Point and made a part hereof,
and recorded in the Clerk's Office of the Circuit Court of
Clarke County, Virginia, prior to the recording of this
instrument in Plat Book 2 at Page 60 to which reference is
hereby made, and said real estate being a part of the same real
estate conveyed to the said Declarant, by Deed dated July 1, 2005
and recorded in Plat Book 6 at Page 60.
WHEREAS, by unrecorded Contract of Sale, Imperial
Properties, Inc. has agreed to repurchase the lots in Calmes
Neck Point and joins in this Deed of Dedication and Declaration
of Protective Covenants for the sole purpose of giving its
assent to the same.
The Covenants recorded in Deed Book 448 at Pages 102-
110 are hereby vacated and replace with the covenants as set
forth below:
All lots in Calmes Neck Point Subdivision shall be
subject to the following protective covenants, conditions, and
restrictions and easements which shall run with the land and
shall be binding upon all subsequent owners of the lots:
ARTICLE I
DEFINITIONS
(1) "Association" shall mean and refer to Calmes Neck
Point Property Owners' Association, its successors and assigns.
(2) "Owner" shall mean and refer to the record owner,
whether one or more persons or entities, of the fee simple title
to any lot which is a part of the property, including contract
sellers, but excluding those having such and interest merely as
security for the performance of an obligation.
(3) "Property" shall mean and refer to that certain
real property described above and such additions thereto as may
hereafter be brought within the jurisdiction of the Association.
1
BOOK 456 PAGE 812
(4) "Lot" shall mean and refer to any numbered or
lettered plat of land shown upon the recorded subdivision plat
of the property.
(5) "Declarant" shall mean "Grantor/Developer" (James
A. O'Hare, James P. O'Hare and Imperial Properties, Inc.) and
refer to its successors and assigns.
ARTICLE II
MEMBERSHIP, VOTING RIGHTS, AND OBJECTIVES
(1) Every owner of a lot shall be a member of the
Association. Membership shall be appurtenant to and may not be
separated from ownership of any lot.
(2} The Calmes Neck Point Property Owners' Association
is required to secure and maintain a third party liability
insurance policy in the principal amount as may be required by
the State of Virginia or Federal law from time to time.
(3) On or before December 31, 2006 or when three-
fourths (3/4) of the lots have been sold, whichever occurs
first, a Property Owners' Association shall be established with
membership consisting of the owners (and only the owners) of
each lot in Calmes Neck Point who shall have one (1) vote per
lot owned. A Board of Directors of three (3) members shall be
elected by the lot owners, except for the initial Board.
The initial Directors of the Association consisting of
one to five members shall be appointed by the Declarant or their
assigns and thereafter the Board of Directors shall be elected
by the lot owners. The initial Directors shall be responsible
for calling the first meeting of the Property Owners'
Association on or before January 31, 2007 and shall be
responsible for the mailing of the written notice of the lot
assessment which is due and payable on February 28, 2007 The
meeting shall be held in Clarke County, Virginia, at a suitable
place to be designated by the initial Board of Directors. At
said meeting, the owners shall by a majority vote, determine
whether or not the Association shall be a corporation, an
unincorporated association, or other legal entity, and shall
elect a Board of Directors and such officers as that may
determine necessary, depending or. the legal entity which they
have selected.
(4) The Duties and Responsibilities of the Property
Owners' Association shall include, but not be limited to the
following:
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BOOK 456 PAGE 813
(A) Maintain Property Owners' Association,
periodically elect officers and directors, and establish and
collect fees and dues.
(B) Maintain Financial Records
(C) Administer the upkeep and improvements to the
Calmes Neck Point Subdivision.
ARTICLE III
COVENANT FOR MAINTENANCE ASSESSMENT
(1) Each owner of a Lot within Calmes Neck Point shall
pay an assessment for the reasonable construction, use,
maintenance, and expansion of the roads and common areas. All
assessments, including any pro-rata share of said assessments,
shall be collected by and paid beginning the calendar year of
January 1, 2006 through December 31, 2006. The Assessments
shall consist of two amounts: An amount determined by the
covenants of the Calmes Neck Property Owners which is currently
$474 for 2006. This amount may be increased pursuant to the
Rules and By-Laws of the Calmes Neck Property Owners'
Association. These funds are used collectively by the Calmes
Neck Property Owners' Association for the maintenance of the
roads and common areas, including the pool, within the Calmes
Neck Subdivision. In addition, each property owner within
Calmes Neck Point Subdivision shall pay the sum of $150 per year
for the maintenance of the roads solely within the Calmes Neck
Point Subdivision.
(2) Any assessment made on a property pursuant to this
paragraph, including a late fee of Twenty-Five Dollars ($25.00),
interest at the rate of Ten Percent (10%) per annum from the
date of delinquency, and reasonable attorney's fees incurred in
the collection thereof, shall constitute a lien on this property
until paid. This lien is expressly inferior and subordinate to
any mortgage liens presently or hereafter encumbering the
property affected by these protective covenants. The owner of
each lot, by acceptance of a deed thereto, automatically becomes
a member of the Calmes Neck Point Property Owners' Association
to be created as herein set forth, and agrees to pay an amount
determined by the positive vote of the Owners of at least two-
thirds (2/3rds) of the Lots in Calmes Neck Point Subdivision as
deemed necessary for the purpose of Maintaining (including the
removal of snow and the repairs and improvements of the roads
and common areas) the right of ways and roadways and common
areas as shown on the subdivision plat. During December of each
year, beginning December, 2006 said Association shall notify
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BOOK 456 PAGE 814
each Lot Owner, in writing, as to the amount of the Lot
Assessment which shall be due and payable in January of the
following year. In the event of a resale of transfer of one or
more Lots in said subdivision, this obligation shall run with
the land and become the obligation of the new Owner (s) even
though it may have been assessed to a prior owner.
(3) If the owner of any Lot is in default in the
payment of any assessments, including interest and costs of
collection, in additional to any other means of collection, the
Property Owners' Association may bring an action at law against
the owner personally obligated to pay same.
(4) In exchange for the Declarant's agreement to
install and maintain said roadways and rights of way until three
quarters of the Lots have been conveyed the Declarant shall be
forever exempt from the payment of said annual assessments and
road maintenance fees as to all Lots now owned or later
reacquired by the Declarant. In the event that the Declarant
should reacquire real estate through purchase at a foreclosure
sale or through settlement of an Owner's default in any
contract, note or deed of trust that the Owner should be
obligated to pay the Declarant, Declarant shall not be required
to pay any past due assessment that the previous owner may have
owed the Association, nor shall the Declarant be required in the
future to contribute to the maintenance of the roadways.
(5) Each Lot Owner, by acceptance of a Deed thereto,
acknowledges that the roads, rights of way, and common areas are
private in nature and shall not be maintained by the Virginia
Department of Transportation or other public agency and that the
maintenance and improvement thereof shall be the mutual
obligation of the Landowners in the subdivision abutting said
roads and Common Areas.
ARTICLE IV
USE RESTRICTIONS
(1) No signs or advertising of any nature shall be
erected or maintained on any lot, except for sale or rental
signs not to exceed six (6) square feet in area (said signs must
comply with Clarke County Ordinances relating to the erection of
signs), except for directional and informational signs provided
by the Declarant.
(2) Resubdivision of the Lots is prohibited.
(3) No owner of any Lot shall interfere with the
natural drainage of surface water from such lot to the detriment
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BOOK 456 PAGE 815
of any other lots. Consequently, in the construction of
driveways into any lot, a minimum twelve inch diameter culvert
shall be used in constructing the driveway in order to
facilitate natural drainage. No parking that obstructs traffic
is permitted upon any road within the property, and as part of
the development of any lot, the Owner shall provide adequate
off-road parking for himself and his guests.
(4) Due to the unsightliness of junk vehicles, no
motor vehicle or trailer which does not have current license
plates or an inspection sticker not more than six months out of
date shall be permitted on any lot. Temporary camping trailers
may be placed on any lot, provided they are in compliance with
Clarke County and Virginia laws concerning temporary camping.
Temporary camping shall be for no more than four months at a
time, and no more than six months per year, for the personal use
of the owner and his immediate family.
(5) No building of a temporary nature shall be erected
or placed on any lot except those customarily erected in
connection with building permanent structures, and in such
cases, for a period not to exceed twelve months.
(6) Not more than one single family residence shall be
erected on a lot. Residences shall contain a minimum of 1800
square feet for a single story or ranch style residence and a
minimum of 2,400 square feet for a two story residence. Said
square foot minimum is of living area, excluding basement,
garage, porch, carport, deck and overhanging eaves. All exterior
construction must be completed and closed in within 12 months of
the commencement of construction. No exterior siding of masonry
block or cinderblock shall be permitted. Guest Homes are
permitted provided they comply with the siding requirements and
that they are not occupied on a permanent basis. Mobile Homes
are not permitted.
(7) Each Lot shall be used for residential or
recreational purposes only, and any garage, barn, or guest house
must conform generally in appearance and material with any
dwelling on said lot.
Notwithstanding the prior paragraph, the following
uses are permitted, subject to applicable state and local laws:
(A) Home occupations conducted by the occupant.
(B) Agricultural uses, including incidental use and
the construction of accessory buildings connected with the
agriculture or with the building of a residence, including
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Book 456 PAGE 816
storage of temporary camping and lawn maintenance equipment.
Said accessory buildings may be constructed before construction
of the residence. Said accessory buildings shall not be used
for temporary sleeping or camping quarters.
(C) Not more than one head of livestock per three
acres shall be permitted per lot, unless otherwise approved by
the Board of Directors of the Property Owners' Association,
provided that no pigs or pig pens are allowed within the
subdivision. All livestock must be fenced in. Operation of any
laying hen, broiler houses, or other poultry business is
prohibited. Pets and domesticated animals must be fenced in or
otherwise prevented from roaming.
(8) The owner shall maintain, repair and restore, as
necessary, the exterior of any building or other improvements
erected on any lot owned by him. Owners likewise agree to
repair and restore promptly to its prior condition any part of
the subdivision road damaged by equipment of Owner or his
contractor enroute to or from Owner's lot. Ail lots improved or
unimproved must be maintained by the Owner in a neat and orderly
condition at all times. No garbage, trash, or inoperable
vehicle or other debris shall be permitted to accumulated or
remain on any lot.
(9) No building shall be erected closer that (sic.) seventy-
five (75) feet from the property line, with the exception that
where two or more lots are used together for the construction of
one dwelling, then the said seventy-five (75) foot setback shall
apply only to the outside lines.
(10) All sanitation facilities constructed on any lot
shall conform to the regulations of the Virginia State Health
Department, Clarke County Health Department, and any other
government agency regulating the installation of sewage disposal
systems.
(11) No lots shall be used or maintained as a dumping
ground for rubbish. Trash, garbage, or other waste must be kept
in sanitary containers. All raw materials must be kept from
view where possible.
(12) The Declarant reserves unto himself or his
assigns the right to erect, maintain, and operate and replace
telephone and electric light poles, conduits, and related
equipment and water, gas and sewer lines, and the right to grant
easements or rights of way therefore, over, on and under a strip
of land twenty feet (20) along all of the right of ways (and
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BOOK 456 PAGE 817
additional width as necessary for guying purposes), in addition
to easements reserved by any other instruments duly recorded.
Where the centerline of roadways or rights of way serve as the
property line of a lot, then the twenty foot wide easement
herein otherwise reserved, shall exclude any portion of the lot
included in the roadways or rights of way, and extend instead,
across the remainder of the lot bounding on said roadways or
rights of way. Nothing here shall be construed as creating any
duty of Declarant to install or maintain any utility services;
however, as it is contemplated that actual installation will be
made at the expense of the utility and/or the lot owners.
(13) Each lot owner shall have an unobstructed right
of way and easement over and across the roads as shown on the
subdivision plat as recorded from time to time, for the purpose
of ingress and egress to and from the public roads and any
common facilities in the subdivision. No part of any lot may be
sold or used as a road or right of way to any land outside the
property without advanced written permission of the Declarant.
(14) Reasonable cutting of wood and timber for land
clearing is permitted. However, no cutting of wood for
commercial purposes is allowed.
(15) If any lot owner shall violate any of the
covenants herein, it shall be lawful for any other person,
persons, legal entities owning real estate in the subdivision or
the Calmes Neck Point Property Owners' Association to prosecute
any proceedings at law or in equity against the person or
persons violating or attempting to violate any such covenant,
whether to prevent him from doing so or to recover damages or
other dues for such violation. Failure to enforce any provision
herein contained shall in no way be deemed a waiver of the right
to do so hereafter.
(16) The Association, by a vote of two-thirds (2/3rds)
of its members, may make additional rules, covenants, and
restrictions for the use of the Property, which together with
the above may be deemed advisable by the Association.
(17) Before construction of any building or home each
Building Plan must be submitted to the Calmes Neck Property
Owner's Association for Review pursuant to the Calmes Neck
Property Owner's Association procedure for "Architectural
Review;" however, the Calmes Neck Property Owner's Association
may advise only and the opinions and advice are not binding on
the five lots of Calmes Neck Point Subdivision.
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BOOK 456 PAGE 818
ARTICLE V
GENERAL PROVISIONS
(1) Declarant reserves the right to replat any unsold
lot. Nothing herein shall be construed to prevent Declarant from
imposing additional covenants/restrictions on any unsold lot(s).
(2) In the event state, local government, and utility
companies, or Declarant, requires the installation of a public
utility system within the area of which the subdivision is a
part, the grantee or grantees, by the acceptance of the deed, so (sic.)
hereby agree to pay their proportional share for the cost of
erection, maintenance and operation thereof as determined by the
above authority.
(3) The Association or any Owner shall have the right
to enforce, by any proceedings at law or in equity, all
restrictions, conditions, covenants, reservations, liens, and
charges now or hereinafter imposed by the provision of this
Declaration. Failure by the Declarant or Association or by any
owner to enforce any provision contained herein shall in no
event be deemed a waiver of the right to do so thereafter.
Note the paragraph below, Article V paragraph (4) bolded and highlighted
by me in green would for a year let the developer change these
covenants so that the new owners would weasel out of their road maintenance
fees!
(4) Declarant reserves the right to reasonably
modify,
change or waiver these covenants herein without
the consent of
any of the owners for a period of one year from
the date of the
sale of the last lot by Declarant from Calmes
Neck Point.
ARTICLE VI
(1) The covenants, restrictions and other provisions
of this Declaration shall run with and bind the land for a
period of twenty-five (25) years from the date this Declaration
is recorded, after which they shall be automatically extended
for successive periods of ten (10) years. This Declaration may
be amended during the first twenty-five (25) year period by an
instrument signed by not less the (sic.) seventy-five (75) percent
of
the lot owners. These covenants are in addition to any other
covenants or restrictions that may run with the land.
(2) Invalidation of any of the covenants,
restrictions, or other provisions of this Declaration by
Judgment or Court Order shall in no way affect other provisions,
which shall remain in full force and effect.
(3) Whenever in this Declaration the context so
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BOOK 456 PAGE 819
Requires, the masculine gender includes the feminine and neuter
and singular numbers include the plural and plural numbers
include the singular.
WITNESS THE FOLLOWING SIGNATURE AND SEAL of James A.
O’Hare and James P. O’Hare, who have caused this instrument to
Be executed this tenth day of April, 2006.
(There follow the signatures of the O’Hares, and under IMPERIAL
PROPERTIES INC., the signature "John E. Folds, President."
Notary signatures and seals follow as does the stamp of Clarke County
Court Clerk Helen Butts, receiving the document officially on April 14,
2006.)
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DEED BOOK 456 PAGE 820
THIS DEED made and dated this 10th day of April, 2006, by
and between
JAMES A. O’HARE and JAMES P. O’HARE. party of the first part, hereinafter
called the Grantors, and STEVEN A. KIEPE and KATHLEEN M. KIEPE, his wife,
parties of the second part, hereinafter called the Grantee, and IMPERIAL
PROPERTIES, INC.. a Virginia corporation, party of the third part.
WITNESSETH: That for and in consideration of the sum of Ten Dollars
($10.00), cash in hand paid, and other good and valuable consideration,
the receipt of
which is hereby acknowledged, the Grantor does hereby grant and convey
with general
warranty and English Covenants of title unto the Grantees, in fee simple
absolute, as
tenants by the entirety with common law right of survivorship, all of the
following
described tract or parcel of land:
All that certain tract or parcel of land, lying and being situate in
Chapel Magisterial District, Clarke County, Virginia, containing
13.0234 acres, and more particularly described as Lot 1, on the
"Final Plat Major Subdivision of the Land of James A. O'Hare and
James P. O'Hare" which is of record in the Clerk's Office of the
Circuit Court of Clarke County, Virginia, in Plat Book 6 at Page 60;
AND BEING a portion of the same land conveyed to James A.
O'Hare and James P. O'Hare by Deed dated May 28, 2004 and
recorded in the Clerk's Office of the Circuit Court of Clarke County,
Virginia, in Deed Book 407 at Page 611.
Page 1 of 3
This conveyance is made subject to all easements, rights-of-way and
restrictions' of record affecting the subject property, and particularly
the restrictive
covenants contained in the Restated Deed of Dedication and Declaration of
Covenants
and Conditions of Calmes Neck Point Subdivision dated the 10th day of
April, 2006, of
record in the Clerk's Office of the Circuit Court of Clarke County,
Virginia,
immediately preceding this Deed.
Imperial Properties, Inc.,a Virginia corporation, joins in the execution
of this
Deed as the Purchaser under an unrecorded Contract of Sale, to grant,
convey and Quit
Claim unto the Grantees herein above named, as tenants by the entirety
with common
law right of survivor-ship, all of it's (sic.) right (sic.),
title and interest, if any, in and to the
subject property
WITNESS the following signature and seal.
Signatures and seals follow of Folds and the two O’Hares
but not the Kiepes
2
A third page contains notary seals and a stamp saying that the deed was
registered April 14, 2006 by Helen Butts, clerk, Clarke County Circuit
court.
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