Declaration of Covenants, Conditions, and Restrictions For Common Properties
STATE OF NORTH CAROLINA, COUNTY OF WAKE
BOOK 3539, PAGES 714-724
THIS DECLARATION of Covenants for Common Properties, made this 20th day of August, 1985, by Raven Ridge Associates, a North Carolina general partnership, A. Hardy Mills Builder, Inc., a North Carolina corporation, Schenk Construction Company, a North Carolina corporation, and Byron Glenn Mitchell and his wife, Dee Green Mitchell, both residents of Wake County, North Carolina (collectively referred to as “Declarant”);
W I T N E S S E T H:
WHEREAS, Declarant is the owner of the certain real property located in Wake County, North Carolina, and more particularly described by Exhibit A attached hereto and incorporated herein by reference; and
WHEREAS, Declarant desires to create certain recreational facilities more particularly described as Common Properties for the benefit of the residents of Banbury Woods Subdivision;
WHEREAS, Declarant desires to provide for the preservation of the value, amenities and conceptual intent of Banbury Woods Subdivision for the maintenance of Common Properties as described herein, and accordingly desires to subject the real property described in Exhibit A hereto, together with such additions as may hereafter be made, to the covenants, restrictions, easements, affirmative obligations, charges, and liens, as hereafter set forth, each and all of which is hereby declared to be for the benefit of said property and each and every owner of any and all parts thereof; and
WHEREAS, Declarant has deemed it desirable for the efficient preservation of the values and amenities of Banbury Woods Subdivision to create an agency to which shall be delegated and assigned the power and authority of maintaining and administering the Common Properties as defined herein and administering and enforcing the covenants and restrictions governing said Common Properties, and collecting and disbursing all assessments and charges necessary for such activities; and
WHEREAS, Declarant has caused or will later cause to be incorporated under the laws of the State of North Carolina as a nonprofit corporation, Banbury Woods Homeowners Association, for the purpose or exercising the functions described above, and which are hereinafter more fully set forth.
NOW, THEREFORE, in consideration of the premises and covenants set forth herein, Declarant declares that the real property described in Exhibit A attached hereto and incorporated herein, and such additions thereto as may hereafter be made, is and shall be held, transferred, sold, conveyed, leased, occupied, and used subject to the covenants, restrictions, conditions, easements, charges, assessments, affirmative obligations, and liens hereinafter set forth (sometimes referred to as the “Covenants”), and said covenants shall run with the land and be binding on all persons claiming under and through Declarant.
ARTICLE I.
DEFINITIONS
Section 1. “Association” shall mean and refer to the Banbury Woods Homeowners Association, a North Carolina nonprofit corporation, and its successors and assigns.
Section 2. “Owner” shall mean and refer to the record owner, whether one or more persons, firms, associations, corporations, or other legal entities, of the fee simple title to any tracts situated upon the Properties, including contract sellers, but notwithstanding any applicable theory of a mortgage, shall not mean or refer to the mortgagee, as successors or assigns, until and unless such mortgagee has acquired title pursuant to foreclosure or a proceeding in lieu of foreclosure; nor shall the term “Owner” mean or refer to any lessee or tenant of an Owner.
Section 3. “Properties” shall mean and refer to that certain real property described in Exhibit A attached hereto and incorporated herein by reference and such additions thereto as may hereafter be brought within the jurisdiction of the Association as subjected to this Declaration or any Supplemental Declaration.
Section 4. “Common Properties” shall mean and refer to all real property (including the improvements thereon) owned by the Association for the common use and enjoyment of the Owners. The Common Properties to be owned by the Association at the time of conveyance of the first Lot are to be marked as “common areas” or “recreational areas” on the site plan prepared by John A. Edwards & Company entitled “Banbury Woods Subdivision Phase III” and to be recorded in the Wake County Registry. The term “Common Properties” shall also include any personal property acquired by the Association if said property is designated as “Common Property.” All “Common Properties” are to be devoted to and intended for the common use and enjoyment of the Owners, subject to the fee schedules and operating rules adopted by the Association.
Section 5. “Lot” shall mean and refer to any improved or unimproved parcel of land, shown upon any recorded subdivision map of the Properties, intended for the construction of a detached single-family dwelling, excluding any Common Properties as defined herein.
Section 6. “Member” shall mean and refer to all Owners as defined herein.
Section 7. “Raven Ridge” shall mean and refer to Raven Ridge Associates, a North Carolina general partnership, its successors and assigns.
ARTICLE II.
MEMBERSHIP AND VOTING RIGHTS IN THE ASSOCIATION
Section 1. Declarant, for so long as it shall be an Owner, and every person or entity who is a record owner of a fee simple or undivided fee simple interest in any Lot that is subject by the Covenants to assessment by the Association shall be a Member of the Association; provided, however, that any such person or entity who holds such title or interest merely as a security for the performance of an obligation shall not 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 by the Association.
Section 2. Voting Rights. The Association shall have two (2) classes of voting membership.
(a) Class A Members shall be all those Owners, with the exception of Raven Ridge until its Class B Membership has converted to Class A Membership, that is defined in section 1 of this Article II, and they shall be entitled to one vote per Lot owned.
(b) The Class B Member shall be Raven Ridge. The Class B member shall be entitled to three (3) votes for each Lot owned by it. The Class B Membership shall cease and be converted to Class A Membership when Raven Ridge has effective sales agreements for the sale of seventy-five percent (75%) of all the Lots affected by these Covenants. Thereafter, Raven Ridge may be entitled to one vote per Lot owned by it.
Section 3. Voting. The total vote of the Association shall consist of the sun of the votes of the Class A Members and the votes of Class B Member. When more than one person holds an interest in any Lot, all such persons shall be Members; and the vote for such Lot shall be exercised as they among themselves determine; however, in no event may more than one vote be cast with respect to any one Lot owned by Class A Members. When one or more co-owners signs a proxy or purports to vote for his or her co-owners, such vote shall be counted unless one or more other co-owners is present and objects to such a vote or, if not present, submits a proxy or objects in writing delivered to the Secretary of the Association before the vote is counted.
ARTICLE III.
PROPERTY RIGHTS IN THE COMMON AREAS
Section 1. Members’ Easements of Enjoyment. Subject to the provisions of the these Covenants and the rules and regulations of the Association, every Member shall have a right and easement of enjoyment in and to the Common Properties and such easement shall be appurtenant to and shall run with the title of every Lot, subject to the following restrictions set forth in section 4 hereof.
Section 2. Delegation of Use. Any Member may delegate in accordance with the By-Laws of the Association, his right of enjoyment to the Common Properties and facilities to the members of his family, his tenants, or contract purchasers who reside on such Members’ Lot.
Section 3. Title to Common Properties. Raven Ridge hereby covenants, for itself, its successors and assigns that it shall convey, bargain and sell the Common Properties to the Association on or before the date that Raven Ridge has required effective contracts for the sale of all the Lots as shown on the recorded maps of the Properties.
Section 4. Extent of Member’s Easements. The rights and easements of enjoyment created hereby shall be subject to the following:
(a) The right of the Declarant and of the Association, in accordance with its Articles of Incorporation, to borrow money for the purpose of improving the Common Properties and in aid thereof to mortgage said properties.
(b) The right of the Association to take such steps as are reasonably necessary to protect the Common Properties against foreclosure; and
(c) The right of the Association, as provided in its By-Laws, to suspend the enjoyment of rights of any Member or any tenant of any Member for any period during which any assessment remains unpaid; and for any period not to exceed thirty (30) days for any infraction of its published rules and regulations, it being understood that any suspension for either non-payment of any assessment or a breach of the rules and regulations of the Association shall not constitute a waiver or discharge of the Member’s obligations to pay the assessment; and
(d) The right of the Association to charge Members’ guests reasonable admission and other fees for the use of the Common properties and/or facilities therein; and
(e) The right of the Association to permit non-Owners to use the Common Properties and to charge reasonable initiation and user fees, provided that the number of such non-Owner users shall not exceed 35 families. Such non-Owner users shall not be deemed Members of the Association.
(f) The right of the Association to give, sell or lease all or any part of the Common Properties to any public agency, authority, or utility or private concern for such purposes and subject to such conditions as may be agreed to by the Members, provided that no such gift, sale or lease shall be effective unless authorized by the vote of two-thirds (2/3) of the vote of each class of Members at a duly called meeting and unless written notice of the proposed action is sent to every Member at least twenty (20) days in advance of any action taken. A true copy of such resolution together with a certificate of the result of the vote taken and a certificate of mailing executed by the Secretary of the Association thereon shall be made and acknowledged by the President or Vice President and Secretary or Assistant Secretary of the Association and such certificate shall be annexed to any instrument affecting the Common Properties, prior to the recording thereof. Such certificates shall be conclusive evidence of authorization by the membership.
ARTICLE IV.
COVENANTS FOR ASSESSMENT
Section 1. Creation of Lien and Personal Obligation of Assessments. Each Owner of any Lot shall, by acceptance of a deed therefor, whether or not it shall be so expressed in such deed or other means of conveyance, be deemed to covenant and agree to all the terms and provisions of these Covenants and to pay to the Association:
(1) Annual Assessments or charges;
(2) Special Assessments for the purposes set forth in this Article, such assessments to be fixed, established and collected from time to time as hereinafter provided. The Annual and Special Assessments together, with such interest thereon and costs of collection therefore as hereinafter provided, shall be a charge and continuing lien on the Lot against which such assessment is made. Each such assessment, together with such interest thereon and cost of collection therefor as hereinafter provided, shall also be the personal obligation of the person who was the Owner of such Lot at the time when the assessment fell due. In the case of co-ownership of a Lot, all such co-owners shall be jointly and severally liable for the assessment.
Section 2. Purpose of Assessments. The assessments levied by the Association shall be used exclusively to promote the recreation, health, safety, and welfare of the residents of the Properties and for the improvement, maintenance, and operation of the Common Properties, including, but not limited to, the payment of taxes and insurance thereon and repair, replacement, and additions thereof, and for the costs of labor, equipment, materials and management supervision thereof. The Special Assessments shall be used for the purposes set forth in Section 4 of this Article.
Section 3. Basic and Maximum Annual Assessments. For calendar year 1985, the maximum annual assessment shall be One Hundred Eighty Dollars ($180.00) per Lot. After calendar year 1985, the maximum annual assessment may be increased each calendar year by no more than 5 percent (5%) above the maximum assessment for the previous calendar year, without the approval by a vote of two-thirds (2/3) of each class of Members who are voting in person or by proxy, at a meeting duly called for this purpose at which a quorum is present. The Board of Directors of the Association shall fix the annual assessment at an amount, not in excess of the maximum stated herein. The Board of Directors may, in its discretion, fix the annual assessment for any given year at a lesser amount than the maximum provided herein, but such action shall not constitute a waiver of its right to revert to the full assessment for future years as provided in this Article.
Section 4. Special Assessments for Improvements and Additions. In addition to the annual assessments authorized by Section 3 of this Article, the Association may levy special assessments for the purpose of defraying, in whole or in part, the cost of any construction or reconstruction, unexpected repair or replacement of capital improvements to the Common Properties, provided, however, that any such special assessment may be levied only with the vote of two-thirds of the votes of each class of members who are voting in person or by proxy, at a meeting duly called for this purpose at which a quorum is present. Written notice of such meeting shall be sent at least twenty (20) days in advance and shall set forth the purpose of the meeting. For purposes of Sections 3 and 4 of this Article, the presence, in person or by proxy, of members entitled to cast at least sixty percent (60%) of the votes of each class of membership shall constitute a quorum.
Section 5. Uniform Rate of Assessment. Both annual and special assessments must be fixed at a uniform rate for all Lots except for exempt Lots provided in Section 9 hereof and except that, notwithstanding anything within this Declaration to the contrary, Raven Ridge shall be required to pay only 25% of any annual or special assessment levied against any Lot owned by it and except that any builder acquiring any Lot for the purpose of engaging in the business of constructing single-family residential building shall be required to pay only 25% of any annual or special assessment levied against such Lot.
Section 6. Date of Commencement of Annual Assessments. The annual assessment provided for herein shall commence on the date fixed by the Board of Directors. The first such annual assessment shall be adjusted according to the number of months remaining in the first calendar year. Such assessment shall be payable in full within thirty (30) days after the first day of the month fixed for commencement. The assessments for subsequent years after the first year shall similarly be payable within thirty days of January 1 of such year. The amount of the annual assessment which may be levied for the balance remaining in the first year of assessment shall be an amount which bears the same relationship to the annual assessment provided for in Section 3 hereto, as the remaining number of months in the year bears to twelve. The same reduction in the amount of the assessment shall apply to the first assessment levied against any property which is hereafter added to the properties now subject to assessment at a time other than the beginning of any assessment period. The due date of any special assessment under Section 4 of this Article shall be fixed in the resolution authorizing such special assessment. Proration of any annual or special assessment due to a change in ownership of any kind of any Lot during a calendar year shall be the responsibility of those persons involved in such transactions and shall not be the responsibility of the Association.
Section 7. Duties of the Board of Directors. The Board of Directors of the Association shall fix the date of commencement and the amount of the assessment against all Lots for each assessment period and shall, at that time, prepare a roster of the Lots and assessments applicable thereto which shall be kept in the office of the Association and shall be open to inspection by any Owner.
Written notice of the assessment shall thereupon be sent to every Owner subject thereto.
The Association shall upon demand, and for a reasonable charge, at any time furnish to any Owner liable for said assessment a certificate in writing signed by an officer of the association, setting forth whether said assessment has been paid. Such certificate shall be conclusive evidence of payment of any assessment therein stated to have been paid.
Section 8. Effect of Nonpayment of Assessment. If an annual assessment or any special assessment is not paid on the date when due, then such assessment shall become delinquent and shall, together with interest therefrom at the rate of eighteen percent (18%) per annum (or if illegal, the highest rate of interest permitted by law) from the due date, and the cost of collection thereof as hereinafter provided, become a charge and continuing lien on the Lot and all improvements thereon. If an assessment is not paid within thirty (30) days after the due date, the Association may bring an action at law against the Owner personally or foreclose the lien against the Lot, and there shall be added to the amount of such assessment the costs of collection, including reasonable attorneys’ fees and expenses, and interest as provided above. No Owner may waive or escape liability for the assessments provided for herein by non-use of the Common Properties 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 or deed of trust now or hereafter placed upon any Lot subject to assessment. Sale or transfer of any Lot shall not affect the assessment lien; however, the sale or transfer of any Lot pursuant to 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. The following property, individuals, partnerships, and corporations subject to this Declaration shall be exempted from the assessment, charge, and lien created herein:
(a) Properties conveyed to public utilities for the purpose of granting utility easements;
(b) All Common Properties as defined herein;
(c) All properties exempt from taxation by the laws of the State of North Carolina, upon the terms and to the extent of such legal exemptions; and
(d) All properties dedicated to, and accepted by, a local public authority.
ARTICLE V.
ARCHITECTURAL CONTROL
No building, wall, fence, swimming pool, or other improvement shall be commenced, erected, or maintained upon the Common Properties, nor shall any landscaping be done, nor shall any exterior addition to any such existing structure or change or alteration therein, be made until the plans and specifications therefor showing the nature, kind, shape, height, materials, and location of the same shall have submitted to and approved in writing as to the harmony and compatibility of its external design and location, with the surrounding structures and topography, by the Board of Directors of the Association, or by an architectural committee composed of three (3) or more representatives appointed by the Board. In the event said Board, or its designated committee, 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; and provided further that all decisions under this section shall be the sole responsibility of Declarant until such time as Declarant shall no longer vote as a Class B member of the Association.
ARTICLE VI.
INSURANCE AND CASUALTY LOSSES
Section 1. Insurance. The Association, by and through its Board of Directors or its otherwise duly authorized agents, shall have the authority to obtain and shall obtain insurance for all insurable improvements on the Common Properties against loss or damage by fire or other hazards, including extended coverage of vandalism and malicious mischief. This insurance shall be in an amount sufficient to cover the full replacement cost or repair or reconstruction in the event of damage or destruction from any such hazard. The Association shall also obtain a public liability policy covering the Common Properties, the Association, and its Members for all damage or injury caused by the negligence of the Association or any of its Members or agents. Premiums for all such insurance contemplated hereunder shall be common expenses of the Association.
Section 2. Disbursement of Proceeds. Proceeds of insurance policies shall be disbursed as follows:
(a) If the damage or destruction for which the proceeds are paid is repaired or reconstructed, the proceeds, or such portion thereof as may be required for such purpose, shall be disbursed in payment for such repairs or reconstruction. Any proceeds remaining alter such costs of repair or reconstruction to the Common Properties shall be retained by and for the benefit of the Association.
(b) If it is determined that the damage or destruction of Common Properties for which the proceeds are paid shall not be repaired or reconstructed, such proceeds shall be retained by and for the benefits of the Association.
ARTICLE VII.
CONDEMNATION
In the event that all or any part of the Common Properties shall be taken (or conveyed in lieu of or under threat of condemnation) the award made for such taking shall be payable to the Association as trustee for owners, to be disbursed as follows:
(a) If the taking involves the portion of the Common Properties on which improvements have been constructed, the Association shall restore or replace such improvements so taken on the remaining Common Properties to the extent such plans as available in accordance with plans approved by the Board of Directors of the Association.
(b) If the taking does not involve any improvements on the Common Properties or in the event that a decision is made not to repair or restore such improvements, or if there are net funds remaining after any such restoration or replacement is completed, then such award or net funds shall be disbursed to the Association and used for such purposes as the Board of Directors may determine.
ARTICLE VIII.
GENERAL PROVISIONS
Section 1. Duration and Amendments. The covenants and restrictions of this Declaration shall run with and bind the land, and shall inure to the benefit of and be enforceable by the Association, the Declarant or the Owner of any Lot subject to this Declaration, the irrespective legal representatives, heirs, successors and assigns, for a term of thirty (30) years from the date this Declaration is recorded, after which time said covenants shall be automatically extended for successive periods of ten years unless the Association approves a change in the covenants and restrictions. The covenants may be amended at any time if two-thirds (2/3) of the vote at a duly called meeting of the Association at which a quorum is present approves the change; provided, however, that no such amendment shall be effective unless made and recorded sixty (60) days in advance of its effective date and unless written notice of the proposed amendment is sent to every Class A Member at least twenty (20) days in advance of any action taken at a duly called meeting.
Section 2. Notices. Any notice required to be sent to any Member or Owner under the provisions of this Declaration shall be deemed to have been properly sent, and notice thereby is given, when mailed, postpaid, to the last known address of the person who appears as Member upon the Association’s membership roll or Owner on the records of the Association at the time of such mailing. Notice to one of two or more co-owners of a Lot shall constitute notice to all co-owners. It shall be the obligation of every Member to immediately notify the Secretary of the Association in writing of any changes of address and it shall be the responsibility of any new Member to immediately notify the Association of the fact of the transfer of ownership.
Section 3. Enforcement. Enforcement of these covenants shall be by any proceeding at law or in equity against any person or persons violating or attempting to violate or circumvent any covenant, either to restrain such violation or to recover damages, and against the land and to enforce any lien created by these Covenants, and a failure of the Association or any Owner or by the Declarant to enforce any covenant herein contained for any period of time shall in no way be deemed to be a waiver or estoppel of the right to enforce such covenant at any time thereafter.
Section 4. Severability. The invalidation, illegality or enforceability of any one or more of these covenants, by judgment or court order or otherwise, shall in no way affect any other provisions hereof which are declared to be severable and which shall remain in full force and effect.
Section 5. Additions to Existing Property. Additional lands may become subject to this Declaration in the following manner:
(a) Additions. Raven Ridge, its successors and assigns, including the Association have the right to bring within the plan and operation of this Declaration, additional later-acquired properties at future stages of the development. The additions authorized under this section shall be made by filing of record Supplementary Declarations of Covenants for Common Properties with respect to the additional property which shall extend the operation and effect of these covenants to such additional property. The Supplementary Declarations may contain such addition and modifications of the covenants contained in this Declaration as may be necessary or convenient, in the judgment of Raven Ridge, to reflect the different character, if any, of the added properties.
(b) Other Additions. Upon approval in writing of the Association pursuant to two-thirds of the vote of each class of members at a duly called meeting, the owner of the property other than Raven Ridge who desires to add it to the plan of these covenants and to subject it to the jurisdiction of the Association, may record a Supplementary Declaration of Covenants with respect to the additional property which shall extend the operation and effect of the covenants to such additional property.
The Supplementary Declaration may contain such complementary additions and modifications of the covenants contained in this Declaration as may be necessary or convenient, in the judgment of Raven Ridge, to reflect the different character, if any, of the added properties.
(c) Mergers. Upon a merger or consolidation of the Association with another association as provided for in the By-Laws of the Association, its properties, rights and obligations may, by operation of law, be transferred to another surviving or consolidated association, or, in the alternative, the properties, rights and obligations of another association may, by operation of law, be added to the properties of the Association as a surviving corporation pursuant to a merger. The surviving or consolidated association may administer the covenants and restrictions established by this Declaration, together with the covenants and restrictions established upon any other properties as one plan. No such merger or consolidation, however, shall affect any revocation, change of or addition to the Covenants established by this Declaration as herein provided.
(d) FHA/VA/FNMA Approval. As long as there is a Class B membership, the following actions will require the prior approval of the Federal Housing Administration, the Veterans Administration or the Federal National Mortgage Association: Annexation of additional properties, mergers and consolidations, mortgaging of Common Properties, and amendment of this Declaration.
EXHIBIT “A”
A. Property of Raven Ridge Associates.
Beginning at an iron pin which marks the southwest corner of Tract #2 of the land conveyed to John A. Edwards and James B. Turner, Jr. , by deed dated March 31, 1965, recorded in Book 1637, Page 582 of the Wake County Registry; thence with the property, line of Tract #2 and Tract #1 of the land described in said deed, six calls as follows: (1) North 00 degrees 26 minutes 30 seconds West 1056 feet to a point, (2) North 81 degrees 44 minutes 05 seconds West 494.12 feet to a point, (3) North 34 degrees 37 minutes East 973.23 feet to an iron pin, (4) North 33 degrees 35 minutes East 370.46 feet to an iron pin, (5) North 28 degrees 27 minutes West 1050.14 feet to a stone corner, and (6) North 39 degrees 12 minutes East 406.26 feet to a point, a corner of the land conveyed to the United States of America by deed recorded in Book 2610 Page 167 of the Wake County Registry thence with the property line of the United States of America, South 35 degrees 19 minutes 53 seconds East 382.20 feet to a point; thence along a new line, seven calls as follows: (1) South 74 degrees 05 minutes 42 seconds East 324.91 feet to a point, (2) South 32 degrees 43 minutes 37 seconds East 475.88 feet to a point, (3) North 51 degrees East 240 feet to a point, (4) North 39 degrees West 45 feet to a point, (5) North 51 degrees East 325 feet to a point, (6) South 22 degrees 22 minutes 30 seconds East 461.67 feet to a point, and (7) South 79 degrees 23 minutes 35 seconds East 716.79 feet to a point in the center of a stream and in the property line of Tract #2 of the land described in said deed dated March 31, 1965; thence with the center of said stream three calls along a traverse line as follows: (1) South 19 degrees 35 minutes West 138.70 feet, (2) South 41 degrees 12 minutes West 164.80 feet and (3) South 33 degrees 37 minutes West 117.12 feet to a point evidenced by an iron pin located on the eastern bank of said stream and designated as “A” on the map referred to below; thence continuing with the property line of the land described in said deed dated March 31, 1965, South 85 degrees 52 minutes East 15 feet to said iron pipe designated “A” and continuing South 85 degrees 52 minutes East 1247.42 feet to an iron pin, the northwest corner of the land conveyed to John A. Edwards and Oberlin Associates by Robert L. Emanuel, Trustee, thence continuing South 85 degrees 52 minutes East 228.15 feet to a point in the western edge of the right of way of State Road No. 2010; thence with said right of way of State Road No. 2010 six calls as follows: (l) in a southerly direction along a curve to the right with a radius of 1070.9 feet an arc distance of 239.21 feet to a point, (2) in a southerly direction along a spiral curve, said curve having a chord with a bearing and distance of South 22 degrees 53 minutes 37 seconds West 164.40 feet to a point, (3) North 65 degrees 48 minutes 23 seconds West 10 feet to a point, (4) South 24 degrees 11 minutes 37 seconds West 230 feet to a point, (5) along a spiral curve with a chord bearing and distance of South 22 degrees 44 minutes 37 seconds West 176.20 feet to a point and (6) in a southerly direction along a curve to the left with a radius of 1230.92 feet, an arc distance of 523.91 feet to a point in the southern property line of the land described in said deed dated March 31, 1965; thence with the property line of said land (partially along State Road 2008 and State Road 2007) four calls as follows: (1) South 62 degrees 23 minutes West 1155.12 feet to a point, (2) South 63 degrees 49 minutes West 517.82 feet to a point, (3) South 14 degrees 55 minutes West 130.05 feet to an iron pin, and (4) North 85 degrees 44 minutes West 1471.55 feet to the point of beginning, containing 177.20 acres, more or less, according to a map entitled “PROPERTY TO BE ACQUIRED BY ALTON L. SMITH, RALEIGH, N.C.” dated May 7, 1984, revised May 21, 1984, prepared by John A. Edwards & Co., Engineers; excluding, however, the property described below as belonging to A. Hardy Mills Builder, Inc., Schenk Construction Company and Byron Glenn Mitchell and wife, Dee Green Mitchell.
B. Property of A. Hardy Mills Builder, Inc.
Being all of lots 1, 2, 5, 6, 7, 8, 9, 10, 11, 12 and 151, as shown on the map prepared by John A. Edwards & Company dated January 9, 1985 entitled “Banbury Woods Subdivision Phase I,” and recorded in Book of Maps 1985, Page 292, Wake County Registry.
C. Property of Schenk Construction Company.
Being all of lots 142, 143, 144, 145, 147, 148, 149, 153, and 154, as shown on the map prepared by John A. Edwards & Company, dated March 13, 1985, entitled “Banbury Woods Subdivision Phase II,” and recorded in Book of Maps 1985, Page 631, Wake County Registry; and being all of lot 152, as shown on the map prepared by John A. Edwards & Company dated January 9, 1985, entitled “Banbury Woods Subdivision Phase I,” and recorded in Book of Maps 1985, Page 292, Wake County Registry.
D. Property of Byron Glenn Mitchell and Dee Green Mitchell.
Being all of lot 4, as shown on the map prepared by John A. Edwards & Company, dated January 9, 1985, entitled “Banbury Woods Subdivision Phase I,” and recorded in Book of Maps 1985, Page 292, Wake County Registry.