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.

 

  1. 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.

 

  1. 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.

 

  1. 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.

 

  1. 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.

 

  1. 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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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

 


 

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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

 

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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

 

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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

 

 

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'-

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.

 

 

 

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:

2

 

 

 

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

8

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.)

 

 

 

 

 

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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