Deed of Dedication and Declaration of
Covenants, Conditions and Restrictions
Recorded at Book 4302, Page 519 of Fairfax County property records
Amended at Book 4574, Page 705 & Book 5482 Page 884
THIS DEED OF DEDICATION AND DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS, Made this 20th day of October 1975, by and between HICKORY FARMS LIMITED PARTNERSHIP, a Virginia limited partnership, party of the first part: JOHN J. COLLINS and CHARLES A. TRAINUM, JR., Trustees, parties of the second part; MORTGAGE INVESTORS OF WASHINGTON, Beneficiary, party of the third part; and WEAVER BROS., INC., Beneficiary, party of the fourth part.
***** W I T N E S S E T H *****
WHEREAS, the party of the first part is the owner of the hereinafter described property, having acquired the same by deed recorded just prior hereto among the land records of Fairfax County, Virginia.
WHEREAS, by deed of trust recorded in Deed Book 3594 at page 445 and supplemental deed of trust recorded in Deed Book 4039 at page 64, and modified in Deed Book 4227 at page 115, among the land records of Fairfax County, Virginia, certain property of which the hereinafter described property is a portion, was conveyed in trust to the parties of the second part, Trustees, to secure unto the party of the third part, Beneficiary, the payment of certain sums of money more particularly described in said deeds of trust.
WHEREAS, by deed of trust recorded in Deed Book 3594 at page 452, and supplemental deed of trust recorded in Deed Book 4052 at page 191, and modified in Deed Book 4227 at page 121 and corrected in Deed Book 4242 at page 709, among the land records of Fairfax County, Virginia, certain property of which the hereinafter described property is a portion, was conveyed in trust to the parties of the second part, Trustees, to secure unto the party of the fourth part, Beneficiary, the payment of certain sums of money more particularly described in said deeds of trust.
WHEREAS, the party of the first part desires to subdivide the hereinafter described property in accordance with the approved plat attached hereto and made a part hereof, and the parties of the second, third and fourth parts hereto, join in this instrument to give their consent and approval of the lots, streets, parcels and easements embraced within the land being hereby dedicated.
WHEREAS, the parties hereto being the owners and proprietors and the only parties having any interest in the hereinafter described parcel of land, desire to subdivide the said tract of land in accordance with the plat attached hereto and made a part hereof, and to dedicate to public use the streets as shown on said plat.
NOW, THEREFORE, for and in consideration of the sum of One Dollar ($1.00) cash in hand paid, receipt of which is hereby acknowledged, the said parties hereto being the sole owners and proprietors and all parties having any interest in the hereinafter described parcel of land, do hereby subdivide all that certain tract of land lying and being in Annandale District, Fairfax County, Virginia, more particularly described as follows:
BEGINNING at an iron pipe set on the easterly side of Virginia Route 653 (Roberts Road), said pipe being on the southerly side of an existing 20 foot wide outlet road from the Hunt Property; thence departing Roberts Road and with the southerly side of said outlet road and Hunt S. 80˚50'29” E. 902.13 feet to an iron pipe found; thence continuing with Hunt following courses and distances: S 00˚04'27” W. 617.48 feet to an iron pipe found; S 80˚44'57” E. 837.98 feet to an iron pipe found in the line of Lot 3, Section One, of Fair Oaks Subdivision: thence with said Lot 3, S 01˚28’12” W. 52.99 feet to a point, said point being the southwesterly corner of Lot 2 of Fair Oaks Subdivision; thence with Lot 2, S 88˚32'58” E. 630.14 feet to an iron pipe found on the westerly side of Route 652 (Burke Station Road); thence with Burke Station Road the following courses and distances: S 01˚27'02” W. 71.65 feet to an iron pipe set; S 27˚41'02” W. 31.60 feet to an iron pipe set at the northeasterly corner of Lot 1 of Fair Oaks Subdivision; thence departing Burke Station Road and with said Lot 1, N 88˚32’58” W. 616.21 feet to an iron pipe found at the northwesterly corner of Lot 1, thence continuing with Lot 1, the following courses and distances: S. 01˚28'12” W. 92.47 feet to an iron pipe found; S. 87˚47'04” E. 2.54 feet to an iron pipe found set at the northwesterly corner of the Layman property; thence with Layman S 00˚01'25” W. 360.99 feet to an iron pipe found; thence continuing with Layman S. 05˚39'34” W. 350.55 feet to an iron pipe found at the northeasterly corner of the Toole property; thence with Toole and then Ridge Manor Subdivision, N 87˚28'52” W. 1006.24 feet to an iron pipe found; thence continuing with Ridge Manor N. 87˚04'42” W. 1138.30 feet to an iron pipe set on the aforesaid easterly side of Robert Toad [sic]; thence with Roberts Road the following courses and distances: N 20˚32'01” E. 1334.90 feet to an iron pipe found; N 00˚31’25” W 498.79 feet to the point of beginning containing 62.2227 acres.
The hereinabove described property is hereby subdivided into building lots, parcels, outlets and streets as shown on the plat prepared by Ross & France, Ltd., Civil Engineering and Land Surveying, dated March 31, 1975, said subdivision to be known as, “HICKORY FARMS, Annandale District, Fairfax County, Virginia”, and the parties hereto do hereby dedicate to public use the streets shown thereon and create and establish the easements as indicated on said plat.
This dedication is made with the free consent and desire of the owners of said property, and is in accordance with the Statutes of Virginia, governing the platting of land and is approved by the proper authorities as is evidenced by the endorsements on the attached plat by the proper officials of such approval.
WHEREAS, a non-stock, non-profit Association entitled, Hickory Farms Community Association, has been chartered.
WHEREAS, Hickory Farms Community Association and their assigns, by recordation of the Deed of Dedication and Declaration of Covenants, Conditions and Restrictions, accepts the duties and responsibilities imposed upon it by the protective covenants hereinafter set out, and shall use the powers granted to it by this instrument and its corporate charter to preserve and promote good order, health, safety and general welfare within the common areas.
ARTICLE I - DEFINITIONS
Section 1. “Association” shall mean and refer to Hickory Farms Community Association, (a non-stock, non-profit Virginia corporation) its successors and assigns.
Section 2. “Properties” shall mean and refer to that certain real property hereinbefore described, and such additions thereto as may hereafter be brought within the jurisdiction of the Association.
Section 3. “Common Area” shall mean all real property owned by the Association for the common use and enjoyment of the members of the Association.
Section 4. “Lot” shall mean and refer to any plot of land shown on any recorded subdivision map of The Properties with the exception of the Common Area.
Section 5. “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 6. “Member” shall mean and refer to every person or entity who holds membership in the Association.
Section 7. “Declarant” shall mean and refer to Hickory Farms Limited Partnership, its successors and assigns if such successors or assigns should acquire more than one undeveloped lot from the Declarant for the purpose of development.
ARTICLE II - ANNEXATION OF ADDITIONAL PROPERTIES
Section 1. Additional land within the area under contract to be purchased by Declarant may be annexed by Declarant without the assent of Class A members within four years of the date of this instrument provided that the FHA and/or VA determine that the annexation is in accord with the general plan heretofore approved by them.
ARTICLE III - MEMBERSHIP
Every person or entity who is a record owner of a fee or undivided fee interest in any lot which is subject by covenants of record to assessment by the Association, including contract sellers, shall be a member of the Association. The foregoing is not intended to include persons or entities who hold an interest merely as security for the performance of an obligation. No owner shall have more than one membership. Membership shall be appurtenant to and may not be separate from ownership of any lot which is subject to assessment by the Association. Ownership of such lot shall be the sole qualification for membership.
ARTICLE IV - VOTING RIGHTS
The Association shall have two classes of voting membership:
Class A. Class A members shall be all those owners as defined in Article III with the exception of the Declarant. Class A members shall be entitled to one vote for each lot in which they hold the interest required for membership by Article III. When more than one person holds such 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.
Class B. Class B members shall be the Declarant. The Class B members shall be entitled to three (3) votes for each lot in which it holds the interest required for membership by Article III, provided that the Class B membership shall cease and determine on the happening of either of the following events, whichever occurs earlier: (a) when the total votes outstanding in the Class A membership equals or exceeds the total votes outstanding in the Class B membership; or (b) on January 1, 1980.
ARTICLE V - PROPERTY RIGHTS
Section 1. Owners' Easements of Enjoyment. Every member shall have a right and easement of enjoyment in and to the Common Area and such easement shall be appurtenant to and shall pass with the title to every assessed lot, subject to the following provisions:
(a) the right of the Association to limit the number of guests of members;
(b) the right of the Association to charge reasonable admission and other fees for the use of any recreational facility situated upon the Common Area;
(c) the right of the Association, in accordance with its Articles and By-Laws, to borrow money for the purpose of improving the Common Area and facilities and in aid thereof, with the assent of 2/3 of each class of membership, to mortgage said property, and the rights of such mortgagee in said properties shall be subordinate to the rights of the homeowners hereunder;
(d) the right of the Association to suspend the voting rights and right to use of the recreational facilities by a member for any period during which any assessment against his lot remains unpaid; and for a period not to exceed 60 days for any infraction of its published rules and regulations;
(e) 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 members entitled to cast two-thirds (2/3) of the votes of the Class A membership and two-thirds (2/3) of the votes of the Class B membership, if any, has been recorded, agreeing to such dedication or transfer and unless written notice of the proposed action is sent to every member not less than 33 days nor more than 60 days in advance;
(f) the parties hereto do hereby grant to the County of Fairfax, its agents, contractors, and employees, an easement on, over and across the streets and areas shown and designated on said attached plat as Common Area, for the purpose of performing any and all municipal functions, governmental or proprietary, which the County may find necessary or desirable to perform including but not limited to police and fire protection and trash removal, together with all other rights necessary for full enjoyment and use of the aforesaid easement. The terms and provisions of this easement shall extend to and be binding upon the successors and assigns of the parties hereto.
ARTICLE VI - COVENANTS FOR MAINTENANCE ASSESSMENTS
Section 1. Creation of Lien and Personal Obligation of Assessments. By this Declaration, Class A members hereby covenant and agree to pay to the Association annual assessments or charges established by the Board of Directors of the Association. The annual assessments shall be for the same amount for every lot owned by a Class A member, and the annual assessment for every lot owned by a Class B member shall be twenty-five percent (25%) of the amount of the annual assessment for a lot owned by a Class A member. Prior to the annual assessment for the 1983 calendar year, the annual assessment for lots owned by Class A members shall not exceed $60.00 per year per lot concomitantly, the annual assessment for lots owned by Class B members shall not exceed $15.00 per year per lot. The assessments or charges established by the Board of Directors of the Association shall be made on an annual basis, and the Board of Directors of the Association may permit the payment thereof on a periodic basis as determined by the Board and establish due dates. The annual assessments, together with interest thereon, and costs of collection thereof, as hereinafter provided, shall be a charge on the land and be a continuing lien upon the property against which each such assessment is made. Each such assessment, together with such interest, costs and reasonable attorney’s fees shall also be the personal obligation of the person who was the Owner of such property at the time when the assessment fell due and shall not pass to his successors in title unless expressly assumed by them. Should the Class B member occupy or rent any dwelling within this Subdivision, at that time the annual assessment shall be the same as the assessment charged to the Class A member.
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 in the Properties and for the improvements and maintenance of the Common Area.
Section 3. Date of Commencement of Annual Assessments: Due Dates. The annual assessment provided for herein shall commence on the first day of the month following the conveyance of the first lot. The first annual assessment shall be adjusted according to the number of 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 dates shall be established by the Board of Directors. The Association shall upon demand at any time furnish a certificate in writing, signed by an officer of the Association, setting forth whether the assessments on a specified lot have been paid. A reasonable charge may be made by the Board for the issuance of these certificates. Such certificates shall be conclusive evidence of payment of any assessment therein stated to have been paid.
Section 4. Effect of Nonpayment of Assessments: Remedies of Association. Any assessments which are not paid when due shall be delinquent. If the assessment is not paid within thirty (30) days after the due date, the assessment shall bear interest from the date of delinquency at the rate of 6% per annum, and the Association may bring an action at law against the owner personally obligated to pay the same or foreclose the lien against the property, and interest, costs and reasonable attorney's fees of any such action shall be added to the amount of such assessment. No Owner may waiver or otherwise escape liability for the assessment provided for herein by non-use of the Common Area or abandonment of his lot.
Section 5. Subordination of the Lien to Mortgages. The lien of the assessments as provided for herein shall be subordinate only to the lien of a first deed of trust and tax liens. Sale or transfer of any lot shall not affect the assessment lien. However, the sale or transfer of any lot which is subject to any mortgage, pursuant to a decree of foreclosure under such mortgage or any proceeding in lieu of foreclosure thereof, shall extinguish the lien of such assessments as to payments thereof, 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 6. Exempt Property. The following property subject to this Declaration shall be exempt from the assessments created herein:
(a) all properties dedicated to and accepted by a local public authority;
(b) common areas;
(c) all properties owned by a charitable or non-profit organization exempt from taxation by the laws of the State of Virginia. However, no land or improvements devoted to dwelling use shall be exempt from said assessments.
ARTICLE VII – RESTRICTIVE COVENANTS
1. All lots in the tract shall be known and described as residential lots and no structure shall be erected, altered, placed or permitted to remain on any residential building lot other than one detached single family dwelling not to exceed two and one half stories in height, and a private garage or carport for not more than three cars. No noxious or offensive trade or activity shall be carried on upon any lot nor shall anything be done thereon which may be or become an annoyance or nuisance to the neighborhood.
2. No structure or alterations to any structure shall be permitted on any lot in this subdivision until the plans and specifications and a plan showing the location of the structure has been approved by the Architectural Control Committee as to quality of workmanship and materials, harmony of external design with existing structures, and as to location with respect to topography and finish grade elevation.
3. All fences or enclosures shall be of wood or brick construction, or other special materials, the material and design of which must be approved by the Architectural Control Committee hereinafter named; said fences and enclosures may be constructed only in side or rear yards, and shall not extend into the area between the street and the front building restriction line. This restriction is not intended to apply to retaining walls, or walls and fences erected in front yards as part of the original community construction. This restriction shall not be construed to preclude the growth of an ornamental hedge fence which shall be kept neatly trimmed to a height of not more than three feet around the front yard of any of said lots. Any fence built on any of the above described lots shall be maintained in a proper manner so as not to detract from the value and desirability of surrounding property.
4. All lots and yards in the above described subdivision shall be maintained in a neat and attractive manner so as not to detract from the appearance of the above described development.
5. The Architectural Control Committee is composed of the general partners of Hickory Farms Limited Partnership and one other member to be appointed by them. A majority of the Committee may designate a representative to act for it. In the event of death or resignation of any member of the Committee, the remaining members shall have full authority to designate a successor. Neither the members of the Committee nor its designated representative shall be entitled to any compensation for services performed pursuant to this covenant. At such time as houses have been constructed on all lots of this Subdivision, it shall become the responsibility of the Board of Directors of Hickory Farms Community Association, to appoint successors to serve as members of the Architectural Control Committee.
6. The Committee’s approval or disapproval as required in these covenants shall be in writing. In the event the Committee or its designated representatives fail to approve or disapprove within thirty (30) days after plans and specifications have been submitted to it, approval will not be required and the related covenants shall be deemed to have been fully complied with. Thereafter approval shall not be required.
7. No livestock, including horses, cattle and hogs, nor fowl such as chickens and pigeons shall be kept on the property. The breeding of animals for commercial use is prohibited, but nothing contained herein shall be construed to prohibit the keeping of the usual domestic pets. No more than two domestic pets shall be kept at any one time. Pets shall be restrained and controlled as required by ordinance now or hereafter promulgated by Fairfax County, Virginia.
8. No structure shall be located on any lot nearer to the front lot line or nearer to the side street line than the minimum building set back lines required by the zoning ordinances of Fairfax County, Virginia. For the purpose of this covenant, eaves, steps and open porches and uncovered porches shall not be considered as a part of building or main structure; provided, however, that this shall not be construed to permit any portion of a lot to encroach upon another lot. The right to waive violation of a building restriction line or building set back lines shall be exclusively retained by the Architectural Control Committee and duly recorded. The Committee may approve the location of said building which may be in violation of said building restriction line and/or building set back lines; provided, of course, that the violation has been reviewed and waivered by the appropriate County zoning authorities.
9. Hickory Farms Limited Partnership reserves the right to install required utilities within the front, side or rear yard building restriction areas for a period of five years from the date of the sale of each lot. In each installation, after construction, Hickory Farms Limited Partnership will immediately restore the area to its former condition.
10. No structure of a temporary character, trailer, tent, shack, garage, barn or other outbuilding shall be used on any lot at any time as a residence either temporarily or permanently.
11. No boats, trailers, tent, or any structure of a temporary character, or portable vehicle other than automobiles shall stay parked forward of any dwelling for a period exceeding 7 calendar days.
12. No sign of any kind shall be displayed to the public view on any lot except one professional sign of not more than one square foot, one sign of not more than five square feet, advertising the property for sale or rent, or signs used by a builder to advertise the property during the construction and sales period.
13. No lot shall be used or maintained as a dumping ground for rubbish. Trash, garbage or other waste shall not be kept, except in a sanitary container.
14. Any violation of the above covenants shall be deemed to be a continuing one until remedied, and shall be enforceable by appropriate court action instituted at any time by any one or more lot owners in the subdivision.
15. Invalidation of any one or more of the covenants herein (or a part thereof) by judgement or court order shall in no way affect any of the other covenants above set forth which shall remain in full force and effect.
16. These covenants are to run with the land and shall be binding on all parties and persons claiming under them for a period of twenty-five years from the date these covenants are recorded, after which time said covenants shall be automatically extended for successive periods of ten (10) 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 in part.
17. Notwithstanding any other provision of this document, none of these covenants will apply to any portion of the land which may in the future be designated for recreational or general community use.
ARTICLE VIII – GENERAL PROVISIONS
Section 1. Enforcement. The Association, or any Owner, shall have the right to enforce, by any proceeding at law or in equity, all restrictions, conditions, covenants, reservations, liens and charges now or hereafter imposed by the provisions of this Declaration. Failure by the Association or by 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 one of these covenants or restrictions by judgment or court order shall be in no wise [sic] affect any other provision 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, and shall inure to the benefit of and be enforceable by the Association, or the Owner of any lot subject to this Declaration, their respective legal representatives, heirs, successors, and assigns for a term of twenty five (25) years from the date this Declaration is recorded after which time said covenants shall be automatically extended for successive periods of ten (10) years. The covenants and restrictions of this Declaration may be amended during the first twenty-five (25) year period by an instrument signed by not less than ninety percent (90%) of lot Owners, and thereafter by an instrument signed by not less than seventy-five percent (75%) of the lot owners. Any amendment must be properly recorded.
IN WITNESS WHEREOF, the said Hickory Farms Limited Partnership, has caused this instrument to be executed in its partnership name by the general partners on this day, month and year first hereinabove written.
HICKORY FARMS LIMITED PARTNERSHIP
FURTHER, WITNESS the following signatures and seals
JOHN J. COLLINS, Trustee under two Deeds of Trust
CHARLES A. TRAINUM, JR., Trustee under two Deeds of Trust
MORTGAGE INVESTORS OF WASHINGTON Beneficiary
WEAVER BROS., INC., Beneficiary
Consented to and approved:
HOUSING CAPITAL CORPORATION
EUROPEAN RESERVE HOLDING CORPORATION OF