McLean Hamlet Covenants Section 5

McLean Hamlet
Fairfax County, Virginia

Book 4883 Pages 698-709

DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS

This Declaration, made by Norvail Development Corp., a Virginia corporation, hereinafter referred to as Declarant.

WHEREAS, Declarant is the owner of a certain tract or parcel of land situated in the County of Fairfax, State of Virginia, containing 11.51582 acres, which has been subdivided by the attached Deed of Dedication into Lots 1 to 24, both inclusive, and Parcel "A", of a subdivision known as Section 5, McLean Hamlet.

NOW THEREFORE, Declarant hereby declares that all of the property described above shall be held, sold and conveyed subject to the following easements, restrictions, covenants and conditions, which are for the purpose of protecting the value and desirability of, and which shall run with, the real property and be binding on all parties having any right, title or interest in the described property or any part thereof, their heirs, successors and assigns, and shall inure to the benefit of each owner thereof.

ARTICLE I

DEFINITIONS

Section 1. "Association" shall mean and refer to Snow-Lear Homeowners Association, a Virginia corporation, its successors and assigns.

Section 2. "Owner" shall mean and refer to the record owner, whether one or more persons or entities, of a fee simple title to any lot which is a part of the Properties, including contract sellers, but excluding those having such interest merely as security for the performance of an obligation.

Section 3. "Properties" shall mean and refer to the real property hereinabove described, and such additions thereto as may be hereafter brought within the jurisdiction of the Association.

Section 4. "Common Area" shall mean and refer to Parcel "A" as shown on the attached subdivision plat of Section 5, McLean Hamlet and any other land owned by the Association or in which it has an interest for the common use and enjoyment of the Owners.

Section 5. "Lot" shall mean and refer to any plot of land shown upon any recorded subdivision map of the Properties with the exception of the Common Area.

Section 6. "Declarant" shall mean and refer to Norvail Development Corp., its successors and assigns, if such successors or assigns shall acquire more than one (1) undeveloped Lot from the Declarant for the purpose of development.

Section 7. "Member" shall mean and refer to every person or entity who holds membership in the Association.

Section 8. "Facilities" shall mean and refer to recreation facilities and all other facilities and improvements built or to be built on the common area and on any other land in which the Association has an interest.

ARTICLE II

PROPERTY RIGHTS

Section 1. Owners' Easements of Enjoyment. Every owner shall have a right and easement of enjoyment in and to the Common Area which shall be appurtenant to and shall pass with the title to every Lot, subject to the following provisions:
(a) the right of the Association to charge reasonable admission and other fees for the use of any recreational facility situated upon the Common Area.
(b) The right of the Association to suspend the voting rights and the right to the use of the recreational facilities by an Owner for any period during which any assessment against his lot remains unpaid, and for a period not to exceed sixty (60) days for any infraction of its published rules and regulations.
(c) The right of the Association to dedicate or transfer all or any part of the Common Area to any public agency, authority, or utility for such purposes and subject to such conditions as may be agreed to by the Members. No such dedication or transfer shall be effective unless an instrument signed by two-thirds (2/3) of each class of Members agreeing to such dedication or transfer has been recorded.
(d) The right of the association to limit the number of guests of Members.

Section 2. Delegation of Use. Any owner may delegate, in accordance with the By-Laws, his rights of enjoyment to the Common Area and Facilities to the members of his family, his tenants, or contract purchasers who reside on the property.

ARTICLE III

MEMBERSHIP AND VOTING RIGHTS

Section 1. Every Owner of a lot which is subject to assessment shall be a member of the Association. Membership shall be appurtenant to and may not be separated from ownership of any Lot which is subject to assessment.

Section 2. The Association shall have two classes of voting membership:

Class A. Class A Members shall be all Owners with the exception of the Declarant and shall be entitled to one vote for each Lot owned. When more than one person holds an interest in any Lot, all such persons shall be Members. The vote for such Lot shall be exercised as they among themselves determine, but in no event shall more than one vote be cast with respect to any Lot. The vote of the Class A Members shall not have a weight in excess of Forty-nine percent (49%) of the total vote cast in any matter until such time as there shall be no Class B membership.

Class B. The Class B Members shall be the Declarant and shall be entitled to three (3) votes for each Lot owned. The Class B membership shall case on the happening of either of the following events, whichever occurs earlier:

(i) when the Class B Member has sold and conveyed the last Lot in the subdivision owned by it, or (ii) at the expiration of five (5) years after the date of the Declaration.

ARTICLE IV

COVENANT FOR MAINTENANCE ASSESSMENTS

Section 1. Creation of the Lien and Personal Obligation of Assessments. Every Owner, except Declarant, of any Lot within the Properties, by acceptance of a deed therefor, whether or not it shall be so expressed in such deed, is deemed to covenant and agree to pay to the Association:

(1) annual assessments or charges for maintenance of the Common Area,
(2) special assessments for capital improvements, such assessments to be established and collected as hereinafter provided, and
(3) special assessments to provide reserves for future replacement costs and expenses.
(4) special assessments for maintenance and repair of pipestem driveways to be established under Article VIII, Paragraph 3, hereof.

The annual and special assessments, together with interest, costs and reasonable attorney's fees, whether made by the corporate ownership or by Fairfax County, shall be a continuing pro rata lien upon the property against which each such assessment is made, second only to taxes and any bona fide duly recorded first trust lien on each Lot. Each such assessment, together with interest, costs and reasonable attorney's fees, shall be the personal obligation of the person, except the Declarant, who was the owner of such property at the time when the assessment fell due. The personal obligation for delinquent assessments shall not pass to his successors in title unless expressly assumed by them.

Section 2. Purpose of Assessments. The assessments levied by the Association shall be used exclusively for the purposes of promoting the recreation, health, safety and welfare of the residents in the areas subject to this Declaration, and in particular for the improvement and maintenance of the Properties, services and Facilities devoted to these purposes and related to the use and enjoyment of the Common Area.

Section 3. Maximum Annual Assessments. Until January 1, of the year immediately following the conveyance of the first Lot to an Owner, the maximum annual assessment shall be $25.00.

(a) From and after January 1, of the year immediately following the conveyance of the first Lot to an Owner, the maximum annual assessment may be increased by an affirmative vote of the Members, such vote to be taken at a duly constituted meeting: Provided that any such change shall have assent of two-thirds (2/3) of the votes of each class of Members in person or by proxy.
(b) After consideration of the current maintenance costs and future needs of the Association, the Board of Directors may fix the annual assessment at an amount not in excess of the maximum.
(c) The annual assessment for any Lot owned by the Declarant shall be one-fourth (1/4) of the Class A assessment until conveyance of the Lot to a bona fide purchaser.
(d) The assessments collected by the Association shall in each year be sufficient to maintain and operate the Common Area as herein set forth, in neat and good order, to pay all taxes, assessments and expenses payable with respect to the maintenance and operation of the Common Area by the Association for the aforesaid purposes, and to provide reserves for future replacement costs and expenses.

Section 4. Special Assessments for Capital Improvements. In addition to the annual assessments authorized above, the Association may levy, in any assessment year, a special assessment applicable to that year only for the purpose of defraying, in whole or in part, the cost of any construction, reconstruction, repair or replacement of a capital improvement upon the Common Area, including fixtures and personal property related thereto and to provide reserves for future replacement, costs and expenses, Provided that any such assessment shall have the assent of two-thirds (2/3) of the votes of each class of Members who are voting in person or by proxy at a meeting duly called for this purpose.

Section 5. Notice and Quorum for Any Action Authorized Under Sections 3 and 4. Written notice of any meeting called for the purpose of taking any actions authorized under Sections 3 or 4 shall be sent to all Members not less than thirty (30) days nor more than sixty (60) days in advance of the meeting. At the first such meeting called, the presence of Members of or proxies entitled to cast Fifty-one percent (51%) of all the votes of each class of membership shall constitute a quorum. If the required quorum is not present, another meeting may be called subject to the same notice requirement, and the required quorum at the subsequent meeting shall be one-half (1/2) of the required quorum at the preceding meeting. No such subsequent meeting shall be held more than sixty (60) days following the preceding meeting.

Section 6. Uniform Rate of Assessment. As to all Lots owned by Class A Members, both annual and special assessments must be fixed at a uniform rate for all Lots and may be collected on an annual basis.

Section 7. Date of Commencement of Annual Assessments: Due Dates. The annual assessment provided for herein shall be on a calendar year basis and commence as to all Lots on the first day of the month following conveyance of the Common Area. The first annual assessment shall be adjusted according to the number of the months remaining in the calendar year. The Board of Directors shall fix the amount of the annual assessment against each Lot at least thirty (30) days in advance of each annual assessment period. Written notice of the annual assessment shall be sent to every Owner subject thereto. The due date of the annual assessment shall be established by the Board of Directors. The Association shall upon demand, and for a reasonable charge, furnish a certificate signed by an officer of the Association setting forth whether the assessments on a specified Lot have been paid.

Section 8. Effect of Non-payment of Assessments: Remedies of the Association. Any assessment not paid within thirty (30) days after the due date shall bear interest from the due date at the rate of Eight percent (8%) per annum. The Association may bring an action at law against the Owner personally obligated to pay the same, or foreclose the lien against the Property. No Owner may waive or otherwise escape liability for the assessments provided for herein by non-use of the Common Area or abandonment of his Lot.

Section 9. Subordination of the Lien to Mortgages. The lien of the assessments provided for herein shall be subordinate to the lien of any first mortgage. Sale or transfer of any Lot shall not affect the assessment line. However, the sale or transfer of any Lot pursuant to first mortgage foreclosure or any proceeding in lieu thereof shall extinguish the lien of such assessments as to payments which became due prior to such sale or transfer. No sale or transfer shall relieve such Lot from liability for any assessments thereafter becoming due or from the lien thereof.

Section 10. Exempt Property. All Properties dedicated to, and accepted by, a local public authority and all Properties owned by a charitable non-profit organization, exempt from taxation by the laws of the Commonwealth of Virginia, shall be exempt from the assessments created herein. However, no land or improvements devoted to dwelling use shall be exempt from said assessment.

ARTICLE V

ARCHITECTURAL CONTROL

No building, fence, wall or other exterior structure shall be commenced, erected or maintained upon the Properties, nor shall any exterior addition to or change or alteration therein be made until the plans and specifications showing the nature, kind, shape, dimensions, color, materials and location of the same shall have been submitted to and approved in writing as to harmony of external design and location in relation to surrounding structures and topography by Norvail Development Corp. (Declarant). In the event Declarant fails to approve or disapprove such design and location within thirty (30) days after said plans and specifications have been submitted to it, approval will not be required and this Article will be deemed to have been fully complied with. Upon the sale of the last lot in the Subdivision owned by Declarant, the rights and obligations of Declarant under this Article shall automatically become vested in the Board of Directors of the Association, or in an Architectural Committee composed of three (3) or more representatives appointed by the Board.

ARTICLE VI

MAINTENANCE

Section 1. Association's Obligations. The Association shall maintain, repair and restore all of the Common Area and any structures or facilities thereon for the common use and benefit of its Members. The cost of same shall be paid by the Association from the aforesaid assessments and charges referred to in Article IV hereof.

ARTICLE VII

USE RESTRICTIONS

All of said Properties shall be subject to the following protective covenants, restrictions and reservations. In addition thereto, the Board of Directors of the Association shall have the power to formulate, publish and enforce reasonable rules and regulations concerning the use and enjoyment of the Common Area.

1. LAND USE AND BUILDING TYPE. No lot shall be used except for residential purposes. No building shall be erected, altered, placed, or permitted to remain on any lot other than one detached single-family dwelling not to exceed two and one-half stories in height at the front elevation, and a private garage for not more than two cars.

2. FENCES. No fence of any kind shall be erected or maintained on any portion of an interior lot (a lot having frontage on only one public street) along the front property line from the front line of the building erected thereon to the front lot line. In the case of corner lots (lots having frontage on more than one public street), no fence of any kind shall be erected or maintained within the area lying between the street lines and the building restriction line established by Count of Fairfax Ordinances. Subject to the foregoing restrictions, any permitted fence shall only be a hedge fence, lattice or split rail fence, whose height shall be subject to the provisions of the Ordinances of the County of Fairfax applicable thereto.

3. TEMPORARY STRUCTURES. No structure of a temporary character, trailer, basement, tent, shack, garage, barn or other outbuilding shall be used on any lot at any time as a residence either temporarily or permanently, nor shall any tree houses be erected or maintained in trees on any lot.

4. BOATS OR TRAILERS. No boat, trailer, or motor home shall be parked or stored on any lot or on the streets abutting any lot, but this shall not prohibit the parking or storage of a boat or trailer in a closed garage which is part of the residence constructed on the lot.

5. TRADE OR BUSINESS. No trade or business of any kind shall be advertised from or transacted on any lot, except that this covenant shall not prevent a lawyer, physician, dentist, podiatrist, chiropodist, or any other member of the medical, dental or legal profession from practicing such profession from said premises, provided that such person so practicing such profession from said premises also resides therein.

6. NUISANCES. No noxious or offensive activity shall be carried on upon any lot, nor shall anything be done thereon which may be or may become an annoyance or nuisance to the neighborhood.

7. COMMERCIAL VEHICLES. No commercial vehicle, whether owned by the lot owner or any other person, shall be permitted to remain on or be parked on any lot overnight, except in a closed garage which is a part of the residence constructed on the lot.

8. LIVESTOCK AND POULTRY. No animals, livestock, or poultry of any kind shall be raised, bred, or kept on any lot, except that dogs, cats or other household pets may be kept, provided they are not kept, bred or maintained for any commercial purpose.

9. GARBAGE AND REFUSE DISPOSAL. No lot shall be used or maintained as a dumping ground for rubbage. Trash, garbage or other waste shall not be kept except in sanitary containers, and all incinerators or other equipment for the storage or disposal of such material shall be kept in a clean and sanitary condition.

10. SIGNS. No signs of any kind or character shall be exhibited, displayed, or placed upon any portion of the lots in the subdivision, except that the owner of any lot may place a sign not larger than ten inches by fifteen inches thereon, bearing the words "For Sale" or "To Rent," together with the name and address of the person to whom inquiries regarding the sale or rent of such property are to be addressed. The owner or occupant of such premises may also place one sign on the premises upon which is inscribed the name and profession of the occupant thereof, but no such sign shall be larger than six inches by twelve inches.

11. PARCEL "A". Parcel "A" shall not be denuded, defaced, nor otherwise disturbed in any manner at any time without the approval of the appropriate County Departments of Fairfax County.

12. LOTS 1 AND 11. Lots 1 and 11 shall have no driveway entrance to Lewinsville Road.

13. EXCLUSIONS. Nothing contained in the preceding paragraphs shall be constructed to prevent Declarant, during the course of construction, from permitting commercial vehicles and construction equipment owned by it or its agents to remain or be parked on any lot or on the streets in the subdivision, or from storing building materials and supplies on any lot, placing any advertising signs on any lot relating to the sale or financing of the improvement thereon, or from using homes constructed on any lot as a model house or as a sales office.

14. DURATION. These covenants are to run with the land and shall be binding on all parties and all persons claiming under them for a period of twenty-five yards from the date of these covenants, after which time said covenants shall be automatically extended for successive periods of ten years, unless an instrument signed by a majority of the then owners of the lots has been recorded agreeing to change said covenants in whole or inpart.

15. ENFORCEMENT. Enforcement shall be by proceedings at law or in equity against any person or persons violating or attempting to violate any covenant, either to restrain violation or to recover damages.

ARTICLE VIII

EASEMENTS AND RESERVATIONS

1. Easements for the installation, repair and maintenance of underground or above ground utilities, supply and transmission lines, sewer, water and drainage facilities are reserved top Declarant, its successors an assigns, through all areas of the Properties, whether within the boundaries of the residential Lots, or in the Common Area, while Declarant is still the owner of any Lot. Such easements shall include right of ingress and egress, provided that any damage resulting from such installation, repair or maintenance shall be promptly repaired or replaced at the expense of the Declarant or authority which directed the entry.

2. Easements across and over and to use and occupy all or any portion of the Common Area are reserved to Declarant during the period that Declarant holds record title to any Lot to permit Declarant's development and maintenance of the Common Area. Such easements shall include the right of ingress to and from such Common Area to accomplish the aforesaid purpose during said period.

3. Lot 6 as shown on the recorded plat of Section 5, McLean Hamlet, is commonly known as a "pipestem" Lot. The pipestem of such Lot shall be used jointly by the owners of Lots 5, 6, 7, their employees, guests and invitees for the purpose of ingress and egress to and from said Lots and Snow Meadow Lane, either in vehicles or on foot, but not for the purpose of storing any goods or other property or for parking, subject to the construction and maintenance of utilities therein and the right of ingress and egress by County and emergency vehicles. The owners of said Lots shall jointly and equally share in the cost of maintaining the same in good repair.

4. Lots 16, 17, 18, 19 and 20 as shown on the recorded plat of Section 5, McLean Hamlet, are also know as "pipestem" Lots. Each owner of said such pipestem Lots shall, at his own cost and expense, maintain the pipestem driveway providing access to and from his Lot and Lear Road in good condition and repair. A thirty (30) foot easement is hereby reserved as shown on the recorded plat over portions of Lots 15, 16, 17, 18, 19 20, and 21 for ingress and egress to and from the Common Area and Lear Road for the benefit of the owners of said Lots and the owners of the other Lots in the subdivision fronting on Lear Road, members of their families, tenants, contract purchasers in possession and permitted guests. This thirty (30) foot easement, includes within its boundaries, the pipestem driveways above described, and shall constitute a private street for ingress and egress as herein specified, utility maintenance, and for use by County and other emergency vehicles.

In the event an owner of any of Lots 16, 17, 18, 19 and 20 shall fail to maintain the pipestem driveway on his Lot in good condition and repair, the owner shall be notified to that effect, in writing, by the Board of Directors of the Association and advised as to the time and place of a meeting of the Board to consider such complaint, and the owner shall be entitled to be present at such meeting and submit evidence on his behalf. After such hearing, the Association upon approval by a majority of the Board of Directors, shall have the right, through its agents and employees, to enter upon said Lot and to repair the pipestem driveway. The cost of such repair shall constitute a special assessment under the provisions of Article IV.

ARTICLE IX

GENERAL PROVISIONS

Section 1. Enforcement. 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 hereafter imposed by the provisions of this Declaration. Failure of the Association or any Owner to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter.

Section 2. Severability. Invalidation of any of these covenants or restrictions by judgment or court order shall in no wise affect any other provisions which shall remain in full force and effect.

Section 3. Amendment. The covenants and restrictions of this Declaration shall run with and bind the land for a term of twenty-five (25) years from the date this Declaration is recorded, after which time they shall be automatically extended for successive periods of ten (10) years. This Declaration may be amended during the first twenty-five year period by an instrument signed by not less than ninety percent (90%) of the Owners, and thereafter by an instrument signed by not less than seventy-five percent (75%) of the Owners. Any amendment must be recorded; and in addition, any amendments to Articles I, II, II, IV, VI (Section 1) Section 4. Annexation. Addition residential property and Common Area may be annexed to the Properties with the consent of two-thirds (2/3) of each class of Members.

This instrument with certificate annexed, with plat attached, admitted torecord-office of Circuit Court Fairfax County, Va. May 31, 1978 at 3:16 p.m.