Article III – Property Subject to Declaration

Section 1. Property. The real property which is, and shall be held, transferred, sold, conveyed, and occupied subject to this Declaration is that certain real property located in Mecklenburg County North Carolina and shown on the plat recorded in Map Book 26, Page 623 in the Office of the Register of Deeds of Mecklenburg County, North Carolina, which real property consists of approximately 13.71 acres and comprises a subdivision known as “HAWK CREST”. This property is sometimes referred to herein as the “Property.”

Section 2. [Intentionally Deleted]

Section 3. Ownership of Common Areas. No later than the date that 75% of the Home Sites have been conveyed by Declarant to other Owners or the date required by the Department of Veterans Affairs, whichever date is earlier, Declarant shall convey the Common Areas and Common Open Spaces to the Association. Declarant may prior to such date convey all or any part of designated Common Areas and Common Open Spaces to the Association. Notwithstanding the foregoing, in the event that any Owner finances his purchase of a Home Site through a loan guaranteed by the United States Department of Veterans Affairs, Declarant shall convey to the Association the Common Areas and Common Open Spaces designated on any then recorded plat of the Property prior to the conveyance of a Home Site to any such Owner. Notwithstanding the recordation of any Map or any other action by Declarant or the Association, all Common Areas and Common Open Spaces shall remain private property and shall not be considered as dedicated to the use and enjoyment of the public. Notwithstanding the fact that the Declarant is still tile owner or any of the aforesaid, the Association shall be responsible for the upkeep and maintenance or the same as soon as they are designated as Common Areas or Common Open Spaces by the Declarant or use by the Association or any Owner has commenced or the Association or any Owner has the right to use the same.

Section 4. Owner’s Rights to Use and Enjoy Common Areas. Except as limited by Section 5 of this Article III, every Owner shall have a non‑exclusive right and easement to use and enjoy the Common Area and Common Open Spaces established initially and in all future stages or sections of the development, which right and easement shall be appurtenant to and shall pass with the title to every Home Site, subject to the following provisions:

(a)       The right of the Association to promulgate and enforce reasonable regulations governing the use of the same to ensure the safety and rights of all Owners;

(b)       The right of the Association to limit the use of recreational facilities (if any) situated upon the Common Area to Owners who occupy a residence on the Property, and to their families, tenants, and guests as provided in Section 5 of this Article III;

(c)       The right of the Association to suspend the voting rights and rights of an Owner to the use of any Common Area for any period during which any assessment against his Home Site remains unpaid; and for a period not to exceed sixty (60) days for any infraction of the Association’s published rules and regulations.

(d)       The right of the Association to dedicate or transfer all or any part of the Common Area, Common Open Spaces or private water/sewer lines to any public agency, authority, or public or private utility for such purposes and subject to such conditions as may be agreed to by the Members. Except as provided below, no such dedication or transfer shall be effective unless the Declarant and Members entitled to at least seventy‑rive percent (75%) of the votes appurtenant to all Class A Home Sites agree to such dedication or transfer and signify their agreement by a signed and recorded written document, provided that, notwithstanding the foregoing, the Association and the Declarant shall have the right, power and authority to grant easements and rights‑of‑way for the installation and maintenance of drainage facilities and of utilities, whether private, public or quasi­-public, including cable television, water, gas and sewer upon, over, under and across any Common Area and/or Common Open Space without the assent of the Members when, in the sole opinion of the Board of Directors of the Association, such easements are required or reasonably necessary for the development and/or the convenient use and enjoyment of the Property and/or the Beverly Crest Property and, in the sole opinion of said Board, will not unreasonably interfere with the overall use and enjoyment of the Common Areas and Common Open Spaces; and provided further this Subsection shall not preclude the Board of Directors of the Association from conveying at such purchase price as the Board deems appropriate strips or portions of the Common Areas and Common Open Spaces to any Owner of a Home Site in order to resolve any gap, gore, overlap or, other boundary line conflict or to make the Home Site more usable as a homesite provided such conveyance does not in the good faith judgment of the Board adversely affect the overall use and enjoyment of the Common Areas and Common Open Spaces.

(e)       The right of the Association, with the assent of Members entitled to at least seventy-five percent (75%) of the votes appurtenant to each class of Home Site (Class A and B), to mortgage, pledge, deed in trust, or otherwise hypothecate or encumber any or all of its real or personal property as security for money borrowed or debts incurred.

(f)        The right of the Association to grant easements over, across and under the Common Areas as provided in this Declaration.

(g)       Easements for ingress, egress, use and enjoyment over, in, to and throughout the Common Areas for the benefit of Declarant.

Section 5. Delegation of Use.

(a)       Family. The right and easement of enjoyment granted to every Owner in Section 4 of this Article III may be exercised by members of the Owner’s family who occupy the residence of the Owner within the Property as their principal residence in Mecklenburg County, North Carolina.

(b)       Tenants. The right and easement of enjoyment granted to every Owner in Section 4. of this Article may be delegated by the Owner to his tenants or contract purchasers who occupy a residence within the Property, or a portion of said residence, as their principal residence in Mecklenburg County, North Carolina.

(c)       Guests. Recreational facilities, if any, located on Common Area situated upon the property may be utilized by guests of Owners, tenants or contract purchasers subject to such rules and regulations governing said use of the Association as may be established by the Board of Directors.

Section 6. Water and Sewage Systems. Declarant has caused (or will hereafter cause) water and sewage systems to be constructed and installed upon the Property, including the Common Area, Common Open Space and through easements over certain Home Sites for the benefit of Owners and others. Upon completion of said systems, Declarant shall convey to the Association any and all pipes, fixtures, wells, pumps and other equipment comprising that portion of the water and sewer systems which are private, which are not located upon a Home Site (except within a designated easement), and which are not owned, operated and maintained by the Charlotte/Mecklenburg Utility Department. That portion of the water and sewer system not owned, operated and maintained by the Charlotte/Mecklenburg Utility Department and which is conveyed to the Association (the “Private System”) shall be owned, operated and maintained by the Association. The Private System may connect at various points to the public system maintained by the Charlotte/Mecklenburg Utility Department, and the water usage of the Private System shall be maintained by master meters located at such connection points.