MBA Restrictive Covenants, Reservations, and Remedial Clauses

MIDDLESEX BEACH ASSOCIATION, a Delaware corporation, does hereby certify that the following is a true copy of the AMENDMENT TO RESTRICTIVE COVENANTS, RESERVATIONS AND REMEDIAL CLAUSES, presently applicable to the DEVELOPMENT named MIDDLESEX BEACH, in Baltimore Hundred, Sussex County, Delaware, as more particularly described by the PLAT of MIDDLESEX BEACH of November 1958, being filed in Georgetown, which Revised Restrictive Covenants, Reservations and Remedial Clauses thereto applies to the entire development above-named, and shall become effective when a copy of Amendment To Restrictive Covenants, Reservations and Remedial Clauses, executed and acknowledged by Middlesex Beach Association, in accordance with the usual form of execution and acknowledgement of Deeds to land by a Delaware corporation, together with the written consent of sixty percent (60%) or more of the present owners of all the lots in MIDDLESEX BEACH, or a certificate by the Association verifying under oath by the President thereof, or in the case of his absence or inability, by any Vice-President thereof, setting forth the time, manner and result of the taking of the vote of all the Members in Middlesex Beach, have been filed for record in the Office of the Recorder of Deeds, of the State of Delaware, in and for Sussex County, pursuant to the amendment provisions of Paragraph 18 of said Restrictive Covenants, as amended and filed for record in the Office of the Recorder of Deeds, of the State of Delaware, in and for Sussex County, in Deed Book 1477, Page 19 et seq.

PROVIDED, HOWEVER, and it is hereby expressly stipulated, understood and agreed that all and singular the lands and premises shown and delineated upon said Plat of MIDDLESEX BEACH, aforementioned, saving and excepting that parcel thereof designated thereon as “Delaware Power & Light Parcel”, as well as the title to all and singular the lands and premises shown thereon and delineated thereby, as well as all property hereby conveyed in pursuance thereof, are subject to the following amendments to the Restrictive Covenants, Reservations and Remedial Clauses, and such Restrictive Covenants, Reservations and Remedial Clauses not so amended shall remain in full force and effect as heretofore adopted, viz:

(1) DEFINITIONS

(1.1) Association:

The Middlesex Beach Association, hereinafter referred to as “Association”, is a Delaware Corporation consisting of all legal ownership entities (i.e., individuals, corporations, partnerships, or other legal entities, both singular and plural) of real estate lots within Middlesex Beach and having an equal ownership interest in the common real and personal property owned by the Association.

(1.2) Board:

The body that is elected according to the current Association governing documents to act on behalf of, and for the common good of, all Members of the Association.

(1.3) Commercial District:

All those lots located on the Plat within blocks H, I, J, K and L, inclusive, unless such lots have been converted to Residential lots in accordance with the provisions of Section 7.4 herein.

(1.4) Front Property Line:

The property line of any lot that is located adjacent to a community Road or public roadway, unless designated otherwise in Sections 2 or 7.4.

(1.5) Front Yard:

The portion of the lot that lies between the Front Property Line and a line extending from the front-most point of the primary structure to the Side Property Lines and which is parallel to the Front Property Line.

(1.6) Kitchen:

A room where food is stored, prepared and cooked, and where the dishes are washed.

(1.7) Member:

The owner of each lot on the Plat of Middlesex Beach. Note that a person or ownership entity may count as more than one (1) Member if that person or entity is the owner of more than one (1) lot.

(1.8) Member in Good Standing:

A Member who is current in his or her payment of all assessments, dues and other charges due and owing the Association, and who is not in violation of these Restrictive Covenants or any other rule or regulation governing the Members. Any violation of either these Restrictive Covenants or any other rule or regulation governing the Members, which is unrelated to the payment of assessments, dues or other charges, must be made known to the violating Member via a written notice from the Association in order for said violation to form the basis of a determination that the Member is not a Member in Good Standing as defined herein.

(1.9) Rear Property Line:

The property line of any lot that is located opposite the Front Property Line.

(1.10) Rear Yard:

The portion of the lot that lies between the Rear Property Line and a line extending from the rear-most point of the primary structure to the side property lines and which is parallel to the Front Property Line intersecting the two corners of the primary structure closest to the Front Property Line.

(1.11) Recreational Vehicle:

A structure on wheels or originally capable of mobility, designed to be self-propelled or permanently towable by an automobile, truck or other motor vehicle and which is intentionally outfitted or equipped so that humans can sleep or live therein or which can be used for storage. The term shall include vehicles mounted on temporary or permanent foundations with the wheels removed.

(1.12) Residential District:

All of the remaining blocks and lots of the community which are not included within the Commercial District, and including any Commercial lot or lots converted to Residential lots in accordance with Section 7.4 herein.

(1.13) Road:

Any of the common property designated on the Plat and identified as Roads, whether or not said common property is improved by paving. The definition of Road shall not include Coastal Highway passing through the community (identified on the Plat as “Delaware State Route No. 14”, now identified as State Route 1) or Kent Avenue (identified on the Plat as “Delaware State Route No. 361”) located to the west of the community.

(1.14) Setback Area:

The area of each lot that falls between each of the Front, Rear or Side Property Lines and the minimum required setback line.

(1.15) Side Property Lines:

The property lines that connect the Front Property Line and Rear Property Line.

(1.16) Side Yard:

All the land area of a lot which is neither the Front Yard nor Rear Yard and which does not have a part of the primary structure constructed thereon.

(1.17) Sign:

A structure, symbol, device, banner, commercial flag, illustration, mural, painting, or written message designed or intended to convey information to the public in written or pictorial form. Such information may include, but is not limited to, a commercial advertisement, announcement, identification, description, direction or similar communication. Numbering or other indicia used to identify a property’s address is not considered a Sign for purposes of these Restrictive Covenants.

(1.18) Sign Area:

The entire area within a continuous perimeter, enclosing the entire limits of the sign display, including any frame, structure, or border. Curved or spherical signs, or signs which are composed of letters, words, representations, forms, shapes or designs which follow no rectangular pattern, shall be considered to include the entire rectangular area encompassing the entire outer limits of the letters, words, representation, forms, shapes or designs.

(2) HEIGHTS, SETBACKS & MISCELLANEOUS

(2.1)

No building of any type, whether it be in the Residential District or the Commercial District, shall exceed the height of thirty-five (35) feet, said height to be measured from the highest point of any Road immediately adjacent the lot to the highest point of the building, including, but not limited to, any ornamental improvements such as cupolas, widow’s walks, crow’s nest, elevator housings, chimneys or similar structures. Antennas, satellite dishes, lightning rods, flag poles, standpipes, or similar protrusions may be allowed to exceed the height limit only when specifically permitted and approved by the Board.

(2.2)

Front, side and rear Setback Areas of each lot shall be maintained free of any buildings or structures, or part thereof, except as specified in subsections (a)-(i) of this section. All setback lines shall be measured from the widest building appurtenances. Roof overhangs of greater than two (2) feet shall count towards the size of the structure, and may not project into any setback area. Roof overhangs of two (2) feet or less may project into any setback area. None of the lot area within the rear or either side setback shall be covered by non-pervious walkways, with the exception of corner lots which may have non-pervious walkways or driveways as necessary to access a Road. The Construction Regulations of Section 4.1 shall include specifics of pervious and non-pervious walkways. Unless grandfathered in accordance with these Restrictive Covenants, structures allowed in the Setback Area are limited to:

  1. Dune crossing walkways, provided they meet criteria established by the Department of Natural Resources and Environmental Control (DNREC);
  2. Fences and retaining walls, which must be constructed in accordance with Section 4.8, 6.6 or 7.7 as appropriate;
  3. Other walkways or retaining walls, provided that they are no more than one (1) foot above finished grade;
  4. Trash and recycling can enclosures, which must be constructed in accordance with Section 6.5 or 7.5 as appropriate;
  5. Shower stalls and clotheslines, provided that they are in the Side Yard or Rear Yard;
  6. Below ground propane tanks, which shall be located at least two (2) feet from any property line;
  7. Detached accessory buildings of not more than two hundred (200) square feet, if constructed in accordance with Section 6.8., which shall be located at least four (4) feet from any property line;
  8. Driveways, provided that any portion which is not of pervious material shall be at least five (5) feet from Side and Rear Property Lines; and
  9. HVAC units.

(2.3)

In cases of single ownership of two (2) or more contiguous lots, the setback lines shall apply to the combined parcel of lots as a whole, provided the owner or occupier thereof makes use of the combined parcel of lots for one (1), single purpose. Any and all of the combined parcel of lots being used for one (1), single purpose must be titled in the name of the same entity (i.e., the same individual; the same individuals where there is more than one (1); or the same entity, whether the entity is a trust, corporation, LLC, or other) in the land records of Sussex County in order to take advantage of the setback provisions contained in this Section 2.3. If the combined parcel of lots being used for one (1), single purpose front in different directions, then the Front Property Line and Front Yard of the whole shall be determined by the owner or occupier by and with the written approval of the Board.

(2.4)

MAINTENANCE OF LOTS & STRUCTURES: All Members are responsible for maintaining their lot and any structures located thereon at their sole expense.

(3) GRANDFATHERING OF EXISTING INFRINGEMENTS

Except as otherwise provided in these Restrictive Covenants, any structure in Middlesex Beach that exists as of the effective date of this amendment (unless otherwise provided elsewhere in these Restrictive Covenants) may be continued even though such structure does not conform to the requirements and provisions of this amendment. Such existing, but non-conforming, structures shall be deemed to be “grandfathered structures”. In the event the grandfathered structure is a deck or balcony that is located in any setback, no portion of such deck or balcony may be enclosed if it is to remain in the setback. Any grandfathered structure may be repaired. An MBA Building Permit as specified in Section 4 is required in order to determine that the work is not an impermissible modification, alteration, enlargement or extension. This Section 3 does not apply to the garbage/trash receptacle requirements and/or enclosure/screening requirements set forth in Sections 6.5, 6.9, 7.5 and 7.6 hereof.

(4) CONSTRUCTION AND DEMOLITION PROCEDURES

(4.1) RULES AND REGULATIONS FOR CONSTRUCTION:

Each Member of Middlesex Beach Association shall comply with published rules and regulations pertaining to any construction at Middlesex Beach as enacted by the Board and published in the Middlesex Beach Association Construction Regulations, hereinafter “Construction Regulations”. No alteration in the exterior appearance or interior layout of any building, structure, or improvement shall be made unless the procedures for construction have been followed. If the Board shall fail to disapprove the plans, specifications or plot plans within thirty (30) days after written request therefore then such approval shall not be required; PROVIDED, HOWEVER, that no building, structure or improvement shall be erected which violates any of these covenants, restrictions, or reservations, as hereinbefore or hereinafter set forth, or any properly published Construction Regulations or other Middlesex Beach Association Rules and Regulations. The Construction Regulations, including any revisions thereto, shall be enacted by the Board and published to the Members not later than May 1 each year. The Construction Regulations shall have an effective date no earlier than the following Labor Day of the same calendar year in which they were published. If no changes are published, the current Construction Regulations remain in effect. The Construction Regulations shall establish procedures for obtaining an MBA Building Permit; the permissible dates and times of construction activities; the specifics of allowable signs; the specifics of mechanical and other items that must be screened; the storage and removal requirements of construction materials and equipment; the security, maintenance and appearance of a lot during construction; minimum size of a project for which a deposit must be posted as specified in Section 4.3, and an amount of an MBA Building Permit fee that shall be charged on new construction or remodeling or both, including specific fines and penalties for violations or non-compliance of the Restrictive Covenants and/or Construction Regulations.

(4.2) BUILDING PERMITS:

No building, structure or improvement shall be placed upon any lot unless and until the plans and specifications therefore, and the plot and grading plans for the lot, showing the nature, kind, shape, height, materials, floor plans, color scheme, location and approximate cost of such building, structure or improvement, shall have been submitted to and approved in writing by the issuance of an MBA Building Permit by the Board and, a copy thereof, has been approved and lodged permanently with the records of the Association. Each such building, structure, or other improvement shall be placed on the premises only in accordance with such plans, specifications, plot and grading plans so approved. Rejection or approval of such plans, specifications, plot, landscaping, and grading plans by the Board may be based on any grounds related to the health, safety and/or general welfare of the Members of the community as a whole, including the contiguous Members, and the effect on the property values thereof. In so passing upon such plans, specifications, plot and grading plans, the Board shall further have the right to take into consideration the suitability of the proposed building or other structure and of the materials of which it is to be built, to the site upon which it is proposed to erect the same, the appearance and harmony thereof with the surroundings and the effect of the building or other structure, as planned, on the outlook from the adjacent or neighboring property, and conformity with these Restrictive Covenants and the Rules and Regulations applicable to Middlesex Beach. MBA Building Permits shall only be issued to Members in Good Standing. In the event the Member seeking the issuance of an MBA Building Permit is not a Member in Good Standing, the Board, in its sole discretion and as it deems appropriate, may grant an exception and issue an MBA Building Permit should unique circumstances exist to justify the issuance of the MBA Building Permit.

(4.3) COMPLETION AND DAMAGE DEPOSIT:

  1. A completion and damage deposit in the form of cash or a certified check in an amount equal to five percent (5%) of the total cost of construction must be submitted to the Board at the time that plans as provided herein, and other documentation as may be required by the Construction Regulations, are submitted if the estimated cost of the proposed construction exceeds the minimum cost of construction as determined by the Board. This minimum amount shall be reviewed and published annually in the Construction Regulations.
  2. Regardless of the estimated cost, a separate completion and damage deposit may be required by the Board where the potential exists for disturbance to community property.
  3. The completion and damage deposit shall be held by the Association to ensure completion of the construction, removal of trash and debris relating to construction, repairing of roadways and any common property damaged by the contractor or subcontractor(s), and/or to cover any legal fees or expenses incurred by the Association for enforcement of any covenants or regulations violated by the Member, contractor, or subcontractor(s) as stipulated in these covenants and/or the published Construction Regulations. A final inspection shall occur with the Member’s cooperation within thirty (30) days after receipt by the Board of a written request from the Member that the project is complete and ready for inspection, and receipt by the Board of a copy of the Sussex County Certificate of Occupancy, if applicable. The deposit may be held until no later than thirty (30) days after a final inspection by the Board and its determination that the construction complies with the Restrictive Covenants, Construction Regulations and plans submitted by the Member and approved by the Board. The Board shall have the power to deduct any outstanding penalties or fees from any completion and damage deposit funds.
  4. If damage to roadways or any other common property is attributable to and/or caused by a Member’s construction activities, but said damage is not discovered at the time of final inspection and the return of the completion and damage deposit as provided in subparagraph (c) above, the Member will continue to be liable for the damage and responsible for all expenses associated with the repair of the common property, including, but not limited to, contractor/subcontractor fees, administrative fees and legal fees, for a period of three (3) years from the date of final inspection.

(4.4) ABANDONMENT:

Once the construction or demolition of any building has been started in MIDDLESEX BEACH, such construction or demolition shall proceed without delay until the same is completed, unless such delay is attributable to a cause or causes beyond the control of the owner, builder or contractor, as the case may be. Cessation of work upon the construction or demolition of any buildings once started and before completion thereof for a continuous period of sixty (60) days shall be prima facie evidence of an intent to abandon the same in its partially completed or demolished state, and shall be deemed to be a public nuisance, and the permit shall be deemed expired and the completion and damage deposit forfeited. In the event of abandonment, the Board may, but shall not be obligated to, take such action as it deems necessary and appropriate to secure the premises, either by removing the partially completed structure or by finishing the construction or demolition work underway. The forfeited completion and damage deposit shall be applied to any such action taken by the Board. Any costs in excess of the amount of the forfeited completion and damage deposit shall be the responsibility of the owner and collected in the same manner as assessments hereunder.

(4.5) CERTIFICATE OF FINAL INSPECTION:

Upon completion of construction for which a permit was required hereunder, a Certificate of Final Inspection and approval must be obtained from the Board. In the event a Certificate of Final Inspection and approval or disapproval is not issued by the Board within thirty (30) days of the Board’s receipt of a copy, from the owner, of a Certificate of Occupancy issued by Sussex County, such approval may not be denied by the Board and shall be deemed to have been granted.

(4.6) EMERGENCY WORK:

Members shall notify the Board within seven (7) days of an emergency repair.

(4.7) TEMPORARY CONSTRUCTION STRUCTURES OR TRAILERS:

Temporary structures or trailers used in connection with, and while construction work is being carried out on any given lot, are permitted, but occupancy of any temporary structure or trailer on the lot for residential or any reason unrelated to construction activities is prohibited. An MBA Building Permit must have been issued and be active in order for a temporary structure or trailer to be located on the property in connection with and while construction work is being carried out as herein provided.

(4.8) FENCES OR WALLS:

No fence or wall of any height shall be constructed upon any lot until after an MBA Building Permit has been obtained, describing the height, type, design, and approximate location thereof. The height or elevation of any point of any fence or wall shall be measured from the existing elevation of the property adjacent to such point. Any questions as to heights shall be solely determined by the Board. Trash enclosures or other screening required by these Restrictive Covenants are not deemed fences or walls for purposes of these Restrictive Covenants. The provisions of sections 6.6 and 7.7 relating to fencing in specific parts of the community also apply.

(4.9) INSPECTIONS:

Whenever a construction inspection by the Board is required or authorized to be taken hereunder in connection with a properly permitted project and/or whenever the Board identifies construction activities for which an MBA Building Permit has not been issued, the Board and its representatives are hereby authorized to enter each lot for the purpose of performing such inspections, and no such entry on a lot shall be deemed a trespass.

(5) SIGNS

(5.1) STANDARDS & REGULATIONS:

Standards and regulations governing the size, number, location, uniformity, construction and types of signs permitted in either or both districts of Middlesex Beach shall be adopted by the Board and published as provided in Section 4.1. Members are only allowed to post up to two (2) freestanding signs on their lot either advertising that property as being For Sale or For Rent, or relating to a specific cause. Each such sign shall comply with any requirements of uniformity as may be required by the Construction Regulations adopted by the Board pursuant to Section 4.1 from time to time. Each such sign shall have at most two (2) sides, and each side shall be a maximum of five (5) square feet. The provisions of sections 6.7 and 7.8 relating to signs in specific parts of the community also apply.

(5.2) SIGNS PROHIBITED IN ALL DISTRICTS OF MIDDLESEX BEACH:

  1. Flashing signs, except time-and-temperature signs.
  2. Animated signs.
  3. Signs, which produce noise or sounds or emit visible smoke, vapor, particles or odor.
  4. Signs with intermittent lights resembling or seeming to resemble the flashing lights customarily associated with danger or such as are customarily used by police, fire or ambulance vehicles or for navigation purposes.
  5. Signs located and so illuminated as to provide a background of colored lights blending with traffic signals to the extent of confusing a motorist when viewed from normal approaching position of vehicle at a distance of twenty-five to three hundred feet.
  6. Signs in any location that obstruct a motorist’s vision of traffic control signals or of other vehicular traffic.
  7. Signs attached to trees or utility poles.
  8. Signs attached to any vehicle parked primarily for display purposes.
  9. Signs located within twenty-five feet of any right of way line of an intersection with another street.
  10. Signs attached to or painted on a wall which rise above the lowermost portion of the roof of the building upon which it is situated.
  11. Signs directing attention to any business, commodity, service or entertainment conducted, sold or offered elsewhere than upon the premises where the sign is maintained.

(5.3) SIGNS PROHIBITED ON MIDDLESEX BEACH ASSOCIATION COMMON PROPERTY:

No freestanding sign of any character shall be erected or posted on Middlesex Beach Association common property, including, but not limited to, Roads, streets and rights of way, the beach, unless erected or posted at the direction of the Board.

(6) RESIDENTIAL DISTRICT

The following provisions specifically apply to properties in the Residential District of Middlesex Beach as said District is defined in Section 1.12:

(6.1)

A land area of not less than one (1) full lot, as shown on the Plat for Middlesex Beach, shall be provided for each dwelling or residence erected, altered, or used in Middlesex Beach. No lot within the Residential District shall have built upon it a dwelling designed and intended for any use other than single family residential purposes and no dwelling shall be built or altered in a manner inconsistent with such purposes and, specifically, no dwelling shall be built or existing dwelling altered on any lot in Middlesex Beach with the intention or design of providing living facilities of a multi-family, multi-dwelling type. All dwellings in the Residential District shall be built and maintained with a single metering system for each utility and with only one (1) Kitchen. Not more than one (1) single, detached single-family dwelling house or residence may be built or maintained on any lot at any time. No residence or dwelling shall be erected on any lot or land area in Middlesex Beach the square footage of the first floor of which is less than one thousand (1,000) square feet, exclusive of all porches, breezeways, carports, garages, outbuildings, terraces, stoops, decks, and the like. The total footprint of all structures on any lot located in the Residential District of Middlesex Beach shall not exceed forty-five percent (45%) of the area of such lot.

(6.2) SETBACK LINES:

The following building setback lines are hereby established for the Residential District of Middlesex Beach, and Front Yards, Side Yards and Rear Yards of each lot shall be maintained free of any buildings or structures, or part thereof, in accordance herewith, except as hereinafter provided:

  1. In block A the building setback line shall be twenty-five (25) feet from the property line appurtenant to Dune Road and from the eastern property line appurtenant to the beach area of Middlesex Beach. The building setback line shall be ten (10) feet from the common side boundary line between said lot and either the adjoining lot or adjoining community walkway.
  2. In blocks B, C, D, E, F and G, the front building setback line of any lot bordering upon any Road shall be twenty-five (25) feet from the property line appurtenant to the Road in question and the building setback line of any lot the side of which borders upon a Road or upon Coastal Highway, shall be ten (10) feet from the property line appurtenant to Coastal Highway or such other Road in question. In case of each Rear Yard, the building setback line of each lot shall be twenty-five (25) feet from the common Rear Property Line of such lot and any property line of an adjoining lot. In case of each Side Yard, the building setback line of each lot shall be ten (10) feet from the common Side Property Line of said lot and any other property line of an adjoining lot.
  3. In blocks M, N, O, P, Q, and R, the building setback line shall be twenty-five (25) feet from the property line appurtenant to all Roads and Delaware State Route No. 361. In the case of each interior Side Yard, the building setback line of each lot shall be fifteen (15) feet from the common Side Property Line between said lot and the adjoining lot. In the case of each interior Rear Yard, the building setback line of each lot shall be twenty-five (25) feet from the common Rear Property Line between said lot and the adjoining lot, and for the purpose of this restriction, each lot abutting on any boundary line of Middlesex Beach, as shown upon the Plat for Middlesex Beach, such property line shall be deemed to be an interior common Rear Property Line of those lots which abut upon any of the same.
  4. No single structure shall be constructed across more than one (1) property line which appears on the Plat of the community.

(6.3) BUILDING FRONT:

All main or principal buildings erected upon any lot located in the Residential District shall front as follows:

  1. Lots 1 to 31, inclusive, of block A, to the West;
  2. Lots 3 and 4 of block B, and lots 5 to 9, inclusive, of blocks C, D, E, F, and G, to the East;
  3. Lots 1 and 2 of block B, and Lots 2 and 4 of blocks C, D, E, F, and G, to the North;
  4. Lots 1 and 3 of blocks C, D, E, F, and G, to the South;
  5. Lot 29 of block M, lot 29 of block N, lot 23 of block 0, lot 27 of block P, lot 25 of block Q, and lot 13 of block R, to the South or to the East;
  6. Lot 30 of block M, lot 30 of block N, lot 24 of block 0, lot 26 of block P, and lot 26 of block Q, to the North or to the East
  7. Lots 1 of blocks M, N, P, Q, and R, to the South or West;
  8. Lots 2 of blocks M, N, P, and Q, to the North or to the West;
  9. All the remaining lots of block R to the South;
  10. All the remaining even numbered lots of blocks M, N, O, P, and Q, to the North; and
  11. All the remaining odd-numbered lots of blocks M, N, O, P, and Q to the South.

(6.4) RE-SUBDIVISION:

No lot located within the Residential District of Middlesex Beach, as shown upon the official Plat thereof, as aforementioned, shall be re-subdivided, sold, or otherwise aliened in a lesser or smaller parcel, except in cases of acquisition of property by the Middlesex Beach Association.

(6.5)

TRASH SCREENING AND DISPOSAL: Each Member shall be responsible for keeping his property free of trash, debris, and garbage. Trash receptacle enclosures must be installed at roadside property lines and must be of a size sufficient for all trash and recycling receptacles. The Board shall have the authority to publish specifications for trash receptacle enclosures from time to time. The Board shall also have the authority to separately regulate and publish regulations for the disposal of lawn debris and yard waste.

(6.6) FENCES:

  1. No fence or wall over six (6) feet in height shall be erected within or adjacent to any yard on the lot. The portion of any fence or wall which exceeds four (4) feet in height shall contain repeated patterns of openings therein equal to at least fifty percent (50%) of the area of said portion of such fence or wall. No portion of any fence in or adjacent to any front setback shall be more than four (4) feet in height.
  2. Solid fences, walls or other barriers up to a height of eight (8) feet may be constructed on property lines along Beach Plum Road abutting the boundaries of the lots in the Residential District and along Route 1 abutting the boundaries of the lots in the Residential District, and that portion of any fence or wall which exceeds six (6) feet in height shall contain repeated patterns of openings therein equal to at least fifty percent (50%) of the area of said portion of such fence or wall.

(6.7) SIGNS:

No sign in the Residential District shall contain any reflective material or an internal or direct exterior lighting source. All height limitations shall be measured from the level of the Road nearest the sign. All ground signs shall conform to standards published from time to time by the Board.

(6.8) GARAGES OR ACCESSORY BUILDINGS:

  1. Nothing herein contained shall be construed to prohibit the erection on any lot of either a detached private garage or other detached small outbuilding (either or both of which are hereinafter referred to as “accessory building”) simultaneous with or after there has been erected thereon a principal dwelling house in compliance with these Restrictive Covenants. There can only be one (1) such accessory building on each lot, and any such accessory building shall be solely used in connection with the principal dwelling erected upon such lot. Further, any such accessory building shall have as its primary purpose the parking of automobiles or shall principally serve as a storage facility, workshop, or similar ancillary purpose. No accessory buildings shall contain a Kitchen. An accessory building shall not be used or occupied as temporary living quarters during any construction activities affecting the principal dwelling on that lot.
  2. No point on any accessory building, including roof overhang, shall be less than ten (10) feet from the principal building, including roof overhang. The front of such accessory building shall be at least twenty (20) feet behind the front corner of the principal building. Roof overhangs of two (2) feet or less shall not count towards these limits. The height thereof shall be not more than fifteen (15) feet, said height to be measured in the same manner and pursuant to the same criteria as described in Section 2.1 hereof. Further, an accessory building may encroach either upon one (1) Side Setback Area or the Rear Setback Area, except where such Side or Rear Setback Area adjoins upon any Road, walkway or highway of each lot. Such encroaching accessory building shall be at least four (4) feet from any property line.
  3. Any accessory building which is attached to the principal building by a three (3) dimensional structure shall count as part of the principal building, and shall meet all setback requirements noted in Section 6.2, and shall comply with the height limit established in Section 2.1.

(6.9) ENCLOSURES & SCREENINGS:

All dwellings, exclusive of porches and decks, built upon pilings must be enclosed by pickets or walls from the ground to the level of the first floor, provided that entrances for vehicles or walkways may remain unenclosed. HVAC units, propane tanks and other equipment identified by the Board to be potential nuisances or eyesores shall be screened with an enclosure as required by the Rules and Regulations passed by the Board and published to the Members from time to time.

(6.10) INCIDENTAL BUSINESS USE:

A resident may conduct business activities within the residence so long as the existence or operation of the business activity is not apparent or detectable by sight, sound or smell from outside the residence; the business activity does not, in the Board’s reasonable judgment, generate a level of vehicular or pedestrian traffic or a number of vehicles being parked at the residence which is noticeably greater than that which is typical of residences in which no business activity is being conducted; and the business activity is consistent with the residential character of the community and does not constitute a nuisance, or a hazardous or offensive use, or threaten the security or safety of other residents of the community, as may be determined in the sole discretion of the Board.

(6.11) RENTAL:

Nothing contained herein shall be interpreted as prohibiting either the short term or long term rental of any property as a whole. The owners of each lot in Middlesex Beach that is rented are responsible for advising the occupants of their property of any and all restrictions and/or published Middlesex Beach Association Rules and Regulations, and shall be responsible for any infractions, penalties and/or fines of these Restrictive Covenants, published Middlesex Beach Association Rules and Regulations and/or published Construction Regulations committed by their renters or guests.

(7) COMMERCIAL DISTRICT

The following provisions specifically apply to properties in the Commercial District of Middlesex Beach as said District is defined in Section 1.3:

(7.1)

Within the Commercial District any lot may be used and occupied for either commercial or residential uses and purposes, or both, or any combination thereof: PROVIDED, that a commercial lot may be converted to two (2) residential lots as provided in Section 7.4.

(7.2) SETBACK LINES:

The following building setback lines are hereby established for the Commercial District of Middlesex Beach, and Front Yards, Side Yards and Rear Yards of each lot shall be maintained free of any buildings, structures, or part thereof, in accordance herewith, except as hereinafter provided: The building setback line shall be fifty (50) feet from the property line appurtenant to Coastal Highway and from Beach Plum Road, and ten (10) feet from the property line appurtenant to all other Roads, and five (5) feet from any interior Side Property Line. A limited exception to the foregoing setback requirements was approved by the Members of the Association for the property identified as Sussex County Tax Map and Parcel No. 1-34 17.16 38.00, also known as Lots 2 and 3, Block H. For additional details see the Certificate of Waiver of Restrictive Covenant for Lots 2 and 3, Block H, in Middlesex Beach recorded in Deed Book 4137, Page 58, et seq., at the Office of the Recorder of Deeds, in and for Sussex County, Delaware.

(7.3)

All main or principal buildings erected upon any lot located within the Commercial District shall front to the East, unless the lot is subdivided in accordance with Section 7.4.

(7.4) SUBDIVISION/CONVERSION TO RESIDENTIAL:

  1. Except as specifically provided in 7.4 (c), no lot located within the Commercial District of Middlesex Beach, as shown upon the official Plat thereof, as aforementioned, shall be re-subdivided, sold, or otherwise aliened in a lesser or smaller parcel, except in cases of acquisition of property by the Middlesex Beach Association or, in the case of a Member, except in accordance with a Supplemental Plot Plan thereof bearing the approval of the Board, and recorded in the Office of the Recorder of Deeds, in and for Sussex County, at Georgetown, Delaware; PROVIDED, HOWEVER, that the owner or owners of any lot in the Commercial District of Middlesex Beach may, after first obtaining permission from the Board of his, her, their, or its intention in writing by registered mail, subdivide one (1) time only such lot converting the lot  into two (2) single family residential lots as nearly equal in size as is possible. Each of these lots shall thereafter be used for residential purposes only and shall be subject to all the restrictions in these Restrictive Covenants pertaining to the Residential District. After such conversion to residential lots has been made, the restrictions on the Commercial District contained in this Section 7 shall no longer be applicable to the newly created residential lots and the restrictions on the Residential Properties contained in Section 6 shall become applicable.
  2. Building setback lines for the converted, newly created residential lots are hereby established as twenty-five (25) feet from all Roads and from Coastal Highway as shown on the present existing Plat of Middlesex Beach, five (5) feet from the common Side Property Line between any two (2) adjoining lots, and twenty-five (25) feet from the common Rear Property Line between any two (2) adjoining lots. Residences placed on said converted lots shall have their front facing in a direction approved by the Board after the Member has submitted plans in accordance with Section 4 of these Restrictive Covenants.
  3. Block I, lot 2, being currently subdivided along a line running roughly East/West, with the Southern half owned by and titled to the owner of block I, lot 1, and the Northern half owned by and titled to the owner of block I, lot 3, shall be permitted to remain in its subdivided state. For purposes of the annual assessment (Section 10) and the allocation of voting power for block I, lot 3, the owner of each half shall be entitled to one-half (1/2) of one (1) vote.

(7.5) TRASH STORAGE, HANDLING AND DISPOSAL:

Each Member shall be responsible for keeping his property free of trash, debris, and garbage. Receptacle enclosures of a size sufficient for all trash and recycling receptacles must be installed at roadside property lines or in the Rear Yard. Such enclosures shall not be deemed a “fence or retaining wall” as specified in Section 7.7, and may be as high as deemed necessary by the Board to visually screen the receptacles. The Board shall have the power to publish specifications for trash receptacle enclosures from time to time, and shall also have the power to require more frequent pickups if necessary in situations where excessive odor and/or loose trash are present.

(7.6) ENCLOSURES & SCREENING:

HVAC units, propane tanks and other equipment identified by the Board to be potential nuisances or eyesores shall be screened with an enclosure as required by the Construction Regulations of the Association and published to the Members as provided in Section 4.1, provided that such screening shall not hinder the ingress or egress of emergency vehicles. Such enclosures or screening shall not be deemed a “fence or retaining wall” as specified in Section 7.7, and may be as high as deemed necessary by the Board to visually screen the potential nuisance or eyesore.

(7.7) FENCES AND RETAINING WALLS:

Solid fences, walls or other barriers of not less than six (6) feet, nor more than eight (8) feet, shall be constructed on property lines along Beach Plum Road abutting the boundaries of the lots in the Commercial District and may be constructed within the Rear Yards or along the Side Property Lines abutting the Rear Yards in the Commercial District of Middlesex Beach. Solid fences, walls or other barriers up to a height of six (6) feet may be constructed in either Side Yard or along either or both Side Property Lines. The portion of any fence or wall which exceeds six (6) feet in height shall contain repeated patterns of openings therein equal to at least fifty percent (50%) of the area of said portion of such fence or wall.

(7.8) SIGNS:

  1. WRITTEN APPROVAL REQUIRED: No sign of any character shall be erected, placed, replaced, reconstructed or posted on any lot in the Commercial District of Middlesex Beach without the prior, written approval of the Board. The erection, placement, replacement, reconstruction or posting of any sign may be determined to be in violation of this provision based upon any criteria or requirement, including specifically, but not limited to, the requirement of Association approval of signs set forth herein or in Section 4 of these Restrictive Covenants pertaining to the approval of construction plans and either disapproved signs or, if found in violation, signs ordered to be removed, whether or not the erection, construction, placement, reconstruction or replacement of such sign is completed.
  2. SIGN MAINTENANCE: All signs shall be maintained in a good and safe condition, with a neat and trim appearance.
  3. NON-CONFORMING SIGNS: Any permanent sign in existence on the effective date of the first amendment to the Restrictive Covenants concerning signs (i.e. August 5, 2003) shall be allowed to remain despite any non-conformity. However, if an existing, non-conforming sign is destroyed by at least fifty percent (50%) or if at least fifty percent (50%) thereof falls into disrepair, then any reconstruction or repair thereof must be made in accordance with this Section 7. The condition of the sign in question shall be determined by the Board at the time the sign permit application is filed. The condition of such sign shall also be evaluated at the time it is destroyed or falls into disrepair. Portable, temporary or moveable signs, including commercial banners, posters, pennants, or commercial flags, that are in violation of this Section 7 shall be removed not later than thirty (30) days after the effective date of this amendment. Applications for a permit to replace a non-conforming sign shall not be considered as a reconstruction of a non-conforming sign and, therefore, the replacement sign must be in accordance with this Section.
  4. Only the following exterior signs are permitted:
    1. One (1) permanent ground sign per lot, as such lots are described on the Sussex County Tax Parcel Map. Said ground sign includes all signs unattached to any building and erected on or supported by one (1) or more uprights, poles, posts or braces placed in or supported by the ground. All such signs shall have a minimum front setback of five (5) feet from the right of way of Route 1, shall have a minimum side setback of twenty (20) feet from each Side Property Line, shall have a minimum setback of twenty-five (25) feet from the right of way line of an intersection with another street and shall contain no more than two (2) sides or facings, back to back. No sign structure shall exceed eighteen (18) feet in height, such height to be measured from the level of the Road nearest the sign. The area of such ground sign shall not exceed one hundred (100) square feet on any side or facing.
    2. In addition to the permanent ground signs permitted in this provision, each store, shop, office or similar commercial unit shall be permitted one (1) permanent sign attached to or painted on each wall, other than a wall facing Beach Plum Road, provided that no such sign shall exceed thirty-six (36) square feet, and, provided further, that no such sign facing northward or southward shall be illuminated from within, nor from the rear, nor from lights affixed to the sign or the wall, nor contain reflective material. The sign facing Route 1 may be an illuminated awning, wall sign, or other attached exterior sign, not to exceed thirty-six (36) square feet per sign. No sign shall be situated upon or attached to any roof, except a portion of a roof which is perpendicular to the ground or has a roof slope of greater than eighty-five (85) degrees and which is essentially an extension of the wall over which it is constructed.
    3. In addition to the provisions of sub-sections (i) and (ii) above, each store, shop, office or similar commercial unit may display one (1) non-illuminated sign, not exceeding eight (8) square feet in area, with letters not exceeding one (1) foot in height, painted, stamped, or stitched on the surface of any awning or canopy, provided that only the copy, logo or display area of such sign shall be considered in any square foot limitations.
    4. In addition to the provisions of sub-section (i), (ii) and (iii) above, each store, shop, office or similar commercial unit may display temporary commercial signage in the form of posters, banners, pennants or commercial flags not to exceed a total combined area of thirty-six (36) square feet. Such an area calculation shall include the area of all posters, banners, pennants, or commercial flags so displayed.
    5. All signs in the Commercial District shall be compatible with the adjoining residential neighborhood, as well as other signs in the Commercial District approved in writing by the Board.

(7.9)

The Maximum hours of operation for any businesses located in the Commercial District are from 6AM to 11PM, seven (7) days a week. No deliveries may be made, no material may be removed, including trash and garbage, no delivery trucks or other motor vehicles may park and idle, and no business may be transacted except between these hours.

(7.10)

The following operations which have the potential for generating undue noise, odors, light or other offensive impacts are prohibited, including but not limited to:

  1. gas stations, or other automotive service/parts establishments (including tires, batteries, mufflers, etc);
  2. repair or parts facilities for mechanical/hvac/electrical/plumbing or similar;
  3. construction operations;
  4. manufacturing/fabricating/processing facilities;
  5. laundromats, including dry cleaners and commercial laundries;
  6. automobile sales or leasing, or other vehicles;
  7. entertainment facilities, including arcades;
  8. building materials, supplies, hardware stores;
  9. hotels/motels/bed & breakfast/multifamily dwellings;
  10. bars or taverns;
  11. any sexually related establishments and/or
  12. animal hospitals and/or animal boarding facilities.

(7.11) Sale of Alcohol:

  1. Any restaurant that wishes to sell alcohol with meals may do so, but only after obtaining all necessary approvals from the State of Delaware and after obtaining a permit from the Board of Directors. A permit to sell alcohol with meals may only be issued by the Board in the event the applicant receives the approval of the owners of sixty percent (60%) of the then owners of the lots in Middlesex Beach. All costs associated with conducting a vote for the purpose of obtaining the approval of the Members as required hereunder shall be the responsibility of the applicant.
  2. In the event a permit to sell alcohol with meals is obtained in accordance with subparagraph (a) above, said permit shall be valid for an initial term of two (2) years. Upon expiration of the initial term, the permit may be renewed for additional two (2) year terms by and through the submission of a renewal application to the Board. Each renewal application must be submitted to the Board for consideration at least ninety (90) days prior to the expiration of the initial term or renewal term in effect. The Board may charge a permit renewal fee, in such amount as may be determined by the Board from time to time. The Board may, in its sole discretion and only upon a determination that cause exists, deny the renewal request and allow the permit to expire.
  3. Any approval to sell alcohol with meals that is obtained in accordance herewith shall only take effect when an appropriate document describing the initial permit approval, the manner of conducting the vote and the results of the vote, has been recorded at the Office of the Recorder of Deeds, in and for Sussex County, at Georgetown, Delaware. Any such approval document is subject to the approval of and must be executed and acknowledged by the Board of Directors for the Association, in accord with the usual form of execution and acknowledgement of Deeds. Any approval to sell alcohol with meals obtained in accordance herewith shall be personal to the applicant who sought and obtained the approval and shall not run with the land or be transferable to any other person or entity. Any artificial entity that sought and obtained permit approval hereunder shall be required to obtain a new permit in accordance with subparagraph (a) above whenever the identity of the persons comprising 50% or more of the membership of said artificial entity changes.

(8) UTILITY AND OTHER EASEMENTS

(8.1)

MIDDLESEX BEACH, including the individual lots therein, are subject to all those prior easements and rights-of-way heretofore granted, as such may be amended from time to time, including but not limited to those granted by Margaret Dunning unto Delaware Power & Light Company and The Diamond State Telephone Company, in and by her certain Deed of Easement dated December 14, 1959, and now of record in the Office of the Recorder of Deeds, aforesaid, in Deed Book 512, page 512 & c.; Deed of Easements granted by Middlesex Beach Association unto All present and future owners of any lot or lots situate in Middlesex Beach dated December 17, 1959, and filed for record in deed Book 512, page 579; Deed of Easement granted by Middlesex Beach Association unto Sussex County dated November 28, 1975, and filed for record in Deed Book 790, page 152; Deed of Easement granted by Middlesex Beach Association unto Sussex County dated September 4, 1976, and filed for record in deed Book 829, page 283; Deed of Easement granted by Middlesex Beach Association unto Sussex County dated June 10, 1978, and filed for record in deed Book 900, page 232; Easement Agreement granted by Middlesex Beach Association unto the Council of South Bethany dated March 19, 1984, and filed for record in Deed Book 1250, page 1; Easement granted by the Diamond State Telephone Company, unto Middlesex Beach Association dated February 8, 1985, and filed for record in Deed Book 1327, page 25; and Easement granted by Middlesex Beach Association, unto the Delaware Department of Natural Resources dated April 12, 2007, and filed for record in Deed Book 3435, page 344, and those that may be granted subsequent to the approval of these amended Restrictive Covenants.

(8.2)

There is hereby reserved for the benefit of the Association an easement, but not an obligation, to enter upon any unimproved portions of lots located within twenty five (25) feet from the beach for the purpose of maintaining the dunes by moving sand, planting dune grass, constructing fences or other barriers, or other similar purposes approved by the Board.

(8.3)

There is hereby reserved for the benefit of the Association an easement, but not an obligation, to enter upon any unimproved portions of lots located within five (5) feet from any property lines in blocks M, N, O, P or Q for the purpose of maintaining the drainage ditches by replacing culverts, adjusting the grade of the ditches, removing trees, brush or other debris from in or overhanging the ditches, or other similar purposes approved by the Board.

(9) OTHER DUTIES, LIMITATIONS AND PROHIBITIONS

(9.1) NUISANCES:

No lot or land area located in any part of MIDDLESEX BEACH may be used for any manufacturing or processing plant, nor shall any livestock or poultry be grown, kept or maintained thereon, nor shall any noxious or offensive trade or activity or any activity that generates excessive noise, light or odors be carried out or conducted thereon, nor shall anything be done, kept, or maintained thereon which constitutes a public nuisance, or eyesore, or a menace to the public health, safety or welfare, or which threatens to adversely affect the safety or value of Middlesex Beach and the other properties therein.

(9.2) PETS:

No livestock, no commercial kennels, and no commercial breeding operations shall be kept, maintained or permitted on any lot in Middlesex Beach. All pets must be kept under the Member’s or custodian’s control at all times. Pets must not become a nuisance to other residents by barking, running loose, or other acts. Pursuant to its authority set forth in Section 12.3 of these Restrictive Covenants, the Board shall be permitted to impose reasonable pet regulations as it deems necessary and appropriate; however, the Board shall not be permitted to disallow pets all together.

(9.3) TEMPORARY STRUCTURES AND VEHICLES.

As may be more specifically addressed in the Construction Regulations, no structure of a temporary character shall be placed upon any lot at any time; provided, however, that this prohibition shall not apply to trailers or other structures approved by the Board and used during construction of a dwelling, it being clearly understood that the latter temporary shelters may not, at any time, be used for residence or remain on the lot after completion of construction. (See Section 4.7 above.) No mobile home, double-wide mobile home, park model trailer, guest house, motor home, recreational vehicle, shack, tent, barn, camper, bus, or other similar vehicle, out-building or structure shall be placed, kept or parked on any lot or on any portion of the common property, except as may be stored within an approved enclosure. No vehicle, out-building, structure, boat or trailer shall be used or occupied as living quarters or as a residence at any time on either a temporary or permanent basis. Despite the foregoing restrictions, recreational vehicles, motor homes or campers no greater than twenty feet (20’) in length may be placed on a lot without an approved enclosure for a period of two (2) weeks in any given calendar year to accommodate a Member’s preparation for and/or return from a trip in said recreational vehicle, motor home or camper.

(10) ANNUAL ASSESSMENT AND LATE FEES

(10.1)

Each Member in Middlesex Beach agrees to pay to Middlesex Beach Association, or its successors, a sum of money annually to be used by the Association for any purpose that is consistent with the best interests of the Members including, but not limited to, professional and other fees and salaries, Road construction and maintenance, security, maintenance of the beach walkways, maintenance of the beach, dunes and drainage ditches, whether such beach, dune or drainage ditch is located on Association property or an individual Member’s property, and for other purposes as budgeted by the Board from time to time. Such annual assessment may be levied no more than once each calendar year and the amount thereof shall be determined from time to time according to the vote of a majority of the Members attending, in person or by proxy, a regular meeting or a special meeting called for such purpose. The aforesaid assessment shall first be levied upon every lot upon which improvements are then located or upon which any stage of construction is underway as of the voting date. There shall thereupon be assessed upon all unimproved lots in Middlesex Beach on the same date an annual maintenance assessment which is fifty-five percent (55%) of the improved lot assessment. The commercial improved and unimproved lots shall be assessed at twice the rate of the assessments for the respective residential improved and unimproved lots.

(10.2)

If any commercial lot is converted to residential lots as specified in Section 7.4, the total assessment of those double residential lots shall be the same as the commercial lot from which they were converted. In the case of subdivision, each subdivided and converted residential lot shall be assessed as a residential lot.

(10.3)

Notice in accordance with Section 12.2 hereof of such annual assessment shall thereupon be sent by the Board to each Member within fifteen (15) days after the aforesaid meeting and vote of the Membership and every such annual assessment shall be paid to the Association within thirty (30) days next following the aforesaid meeting at which such assessment is determined.

(11) ENFORCEMENT AND REMEDIES

(11.1)

In the event any party hereto, or his, her or its, heirs, successors, or assigns, as the case may be, shall violate, or attempt to violate, any of these Restrictive Covenants, the published Middlesex Beach Association Rules and Regulations, and/or the published Construction Regulations, while the same remain in force and effect, then and in such an event, it shall be lawful for the Middlesex Beach Association or its successors, or for any Member, to bring any proceeding and to take any action, either in law or in equity, against such violator of any of these Restrictive Covenants, the published Middlesex Beach Association Rules and Regulations, and/or the published Construction Regulations, as may be applicable to prevent or abate the violation thereof or to recover damages resulting from any such violation or attempted violation thereof.

(11.2)

It shall be no defense in any such action that the Member is absent or that the property is leased to a third party. Moreover, any party who violates any of the Restrictive Covenants of Middlesex Beach including, but not limited to, the sections contained herein about delinquent maintenance assessments, hereby agrees that such violation irreparably harms Middlesex Beach and hereby authorizes the Court of Chancery of the State of Delaware to enter a temporary, preliminary and/or permanent restraining and injunctive order preventing the offending party from building on any property in Middlesex Beach until such violation(s) is corrected and further agrees that the Court of Chancery of the State of Delaware, in and for Sussex County, would have subject matter and personal jurisdiction in any such case.

(11.3)

In addition to the other remedies available to the Association hereunder, if any Member fails to fulfill any of the requirements of these Restrictive Covenants, Middlesex Beach Association may, after issuing a certified letter with a ninety (90) day right to cure, correct the condition at the sole expense of the Member in a manner as determined by Middlesex Beach Association, the cost of which shall be billed to the Member and collectible in the same manner as the annual assessment hereunder.

(11.4)

In addition to any and all other remedies and methods of enforcement available to the Association under these Restrictive Covenants or any other governing document of the Association, the Board shall have the power to tow vehicles that are parked or maintained in violation of these Restrictive Covenants, the Bylaws and any duly adopted Rules and Regulations. The costs associated with any towing implemented by the Board shall be assessed against the violating Member or occupant and may be collected in the same manner as assessments provided elsewhere in these Restrictive Covenants.

(11.5)

Collection of Assessments and Assessment Lien.

  1. If any assessment, including any penalties or other amounts owed prior to the time of the meeting at which the amount of the annual assessment is determined, is not paid on the date when due, then such assessment and other amounts owed shall be deemed delinquent and, together with such interest, late fees, fines, penalties, administrative fees and costs of collection thereof, including reasonable attorneys’ fees, shall constitute a lien on the lot and any structure built thereon which shall bind such lot in the hands of the then Member. Each Member, by acceptance of a Deed or other transfer document, covenants and agrees that the Board shall have the authority to prepare and record in the Office of the Recorder of Deeds, in and for Sussex County, Delaware, a list of Members delinquent in the payment of any assessments or other charges authorized by these Restrictive Covenants stating the Member’s name, lot number, and amount owed, which list, when recorded, shall be a lien against the lot. Prior to filing any lien document, the affected Member shall be provided notice and an opportunity to cure the delinquency in accordance with the Rules and Regulations of the Association.
  2. In addition to such lien rights, the personal obligation of the then Member to pay such assessment, however, shall remain his personal obligation and shall not pass to his successors in title (other than as a lien on the land) unless expressly assumed by them. 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 eighteen percent per annum (18%) or the maximum legal rate, whichever is greater, and be subject to late fees, and the Board may bring a legal action against the Member personally obligated to pay the same or may enforce or foreclose the lien against the lot. In the event a judgment is obtained, such judgment shall include interest on the assessment as above provided and reasonable attorneys’ fees to be fixed by the court, together with the costs of the action. No owner of a lot may waive or otherwise escape liability for the assessments provided for herein by non-use of any common property in the community or abandonment of said lot.
  3. If any assessment or other charge due and owing the Association is not paid on the date when due, the Member is not considered to be a Member in Good Standing and the Board shall have the power to revoke the Member’s rights and privileges to use the beach or other facilities of the Association until such time as the delinquency has been remedied.

(11.6)

In the event any Member desires to make a complaint of an alleged violation of any of these Restrictive Covenants, the published Middlesex Beach Association Rules and Regulations, and/or the published Construction Regulations, unto the Board, such complaint or proposal, as the case may be, must first be reduced to writing and signed by the complaining party.

(12) MISC. ADMINISTRATIVE PROVISIONS

(12.1)

The Board shall comply with the following procedures prior to the imposition of a monetary fine, penalty or other remedial action authorized by these Restrictive Covenants. The following provisions shall not apply to the imposition of late fees, interest or other action taken by the Board in connection with a delinquent assessment.

  1. Notice of Intent. Notice of intent to make any such a determination must be included in any published agenda for the next Board Meeting, and such a determination must be approved by 2/3rds of those Board members present and voting. The Board or its agent shall serve the alleged violator with written notice describing: (i) the nature of the alleged violation; (ii) the action required to abate the violation; (iii) the proposed fine, penalty or other remedial action to be imposed if the violation is not abated; (iv) the date of the next Board meeting when the violating Member may appear should he or she desire a hearing to challenge the Board’s determination; and (v) a statement that the proposed fine, penalty or other remedial action shall be imposed as contained in the notice unless the violating Member appears at the next Board meeting for a hearing or, in the alternative, unless the violating Member responds to the Board in writing that the violation will be cured within the prescribed time period as set forth in the notice. If the violating Member fails to appear at the next Board meeting for a hearing and fails to timely respond that the violation will be cured, the proposed fine, penalty or other remedial action stated in the notice shall be imposed; provided the Board may, but shall not be obligated to, suspend any proposed fine, penalty or other remedial action if the violation is cured within the thirty (30) day period or such other time period as may be stated in the notice. Such suspension shall not constitute a waiver of the right to fine, penalize or impose other remedial action for future violations of the same or other provisions and rules by any person.
  2. Hearing. Hearings shall be held before the Board in executive session. The alleged violator shall be afforded a reasonable opportunity to be heard. Prior to the effectiveness of any fine, penalty or other remedial action hereunder, proof of proper notice shall be placed in the minutes of the meeting. Such proof shall be deemed adequate if a copy of the notice, together with a statement of the date and manner of delivery, is entered by the officer, director, or agent who delivered such notice. The notice requirement shall be deemed satisfied if the alleged violator or its representative appears at the meeting. The minutes of the meeting shall contain a written statement of the results of the hearing and the fine, penalty or other remedial action, if any, imposed.

(12.2) Notices:

All notices, demands, bills, statements or other communications under these Restrictive Covenants or under the corporate governing documents for the Association shall be in writing and shall be deemed to have been duly given if:

  1. delivered personally;
  2. if to a Member, if sent by email, facsimile or other method of electronic transmission to the Member at the e-mail/electronic address or facsimile number which the Member shall designate in writing and file with the Board;
  3. if to a Member, if sent by first-class mail, postage prepaid, to a Member at the address which the Member shall designate in writing and file with the Board or, if no such address is designated, at the address of the Member as provided in the tax assessment records for Sussex County, Delaware;
  4. if to the Board, if sent by e-mail, facsimile or other method of electronic transmission to the Board at the e-mail/electronic address or facsimile number which the Board shall designate in writing to the Members as the principal e-mail/electronic address or facsimile number of the Board; or
  5. if to the Board, if sent by first-class mail, postage prepaid to the Board or the professional management agent, at the principal office of the Board or at such other address as shall be designated by notice in writing to the Members pursuant to this section. Each such Member is responsible for providing the Board or its agents with the owner’s Emergency Contact Information should there be infractions which need to be brought to the Member’s attention. Whenever any notice is required to be given under the provisions of these Restrictive Covenants, the Articles of Incorporation, the Bylaws, or any published Rules and Regulations, a written waiver thereof signed by the Member or Members entitled to such notice, whether signed before or after the time stated therein, shall be deemed equivalent thereto.

(12.3) RULES AND REGULATIONS.

  1. Generally. The Board of Directors of the Association may from time to time adopt Rules and Regulations governing Roads, other common property in Middlesex Beach, and existing or potential nuisances in Middlesex Beach which are prohibited by Section 9.1 of these Restrictive Covenants. Similarly situated Members shall be treated similarly; however, the Rules and Regulations may vary between the Residential District and the Commercial District.
  2. Traffic Regulations. The Board may from time to time adopt Traffic Regulations, either as part of the general Rules and Regulations or as a separate document, pertaining to vehicular and pedestrian traffic in Middlesex Beach, including but not limited to speed, right of way, and parking, and all vehicular and pedestrian traffic within Middlesex Beach shall obey the laws of the State of Delaware. Employees and agents of the Association shall have the power to issue notices of violation of such Traffic Regulations and to tow vehicles parked in violation of the Traffic Regulations (as authorized by Section 11.4 hereof), and the Board shall have the power to set the amounts and procedures for collecting fines for violations and costs of towing, and to adopt such other means of enforcement as it deems appropriate.

(12.4)

None of these Restrictive Covenants shall be applicable to the activities of the Association in connection with its development, improvement or use of any lot or other parcel in Middlesex Beach, provided such development, improvement or use is for the benefit of the Middlesex Beach community as a whole.

(13) DURATION, AMENDMENTS & INDEMNIFICATION

(13.1)

To the extent there is no available and applicable insurance coverage, the Association shall indemnify any and all of its directors, officers, committee members and employees for all liability threatened or arising from any pending or completed action, suit or proceeding, whether civil, criminal, administrative, or investigative, by any person individually or in the right of the Association resulting from any authorized action taken on behalf of the Association where such person acted in good faith and in a manner reasonably believed to be in or not opposed to the best interests of the Association, and, with the respect to any criminal action or proceeding had no reasonable cause to believe the conduct was unlawful. When applicable, indemnity shall include payment for all expenses, including attorney’s fees, judgment, fines and amounts paid in settlement actually and reasonably incurred by directors, officers, committee members and employees of the Association performed in carrying out their duties and other members and employees designated by officers to conduct any activity on behalf of the Association.

(13.2)

These Restrictive Covenants shall run with the land, and the title thereto, as herein and hereby conveyed, and the same shall be binding upon all parties hereto, and upon all persons claiming hereunder, as well as their respective heirs, successors, and assigns, as the case may be, in perpetuity: SUBJECT HOWEVER, TO THE PROVISO that Middlesex Beach Association, by and with the vote or written consent of no less than sixty percent (60%) of the then owners of all the lots in MIDDLESEX BEACH shall have the power to waive, abandon, terminate, modify, alter, change, amend, or add to these Restrictive Covenants, or any of them, at any time hereafter. Any such waiver, abandonment, termination, modification, alteration, change, amendment, or addition shall take effect when a copy thereof, executed and acknowledged by the Board, in accord with the usual form of execution and acknowledgment of Deeds to land by a Delaware corporation, together with the written consents of the requisite number of Members, or a certificate by the Association verified under oath by the President thereof, or in the case of his absence or inability, by any Vice-President thereof, setting forth the time, manner and result of the taking of the vote of all the Members in MIDDLESEX BEACH, have been filed for record in the Office of the Recorder of Deeds of the State of Delaware, in and for Sussex County, and the same shall thereafter remain in effect in perpetuity, unless and until the same shall thereafter be waived, abandoned, terminated, modified, altered, changed, amended, or added to, as the case may be. In the taking of any such vote, or the obtaining of such written consent, of the Members in MIDDLESEX BEACH, each owner shall have as many votes or consents as he, she, it, or they may own lots situate in MIDDLESEX BEACH. In the event any Member desires to propose unto the Board any waiver, abandonment, termination, modification, alteration, change, or addition of, in or to these Restrictive Covenants, such must first be reduced to writing and signed by the proposer before it may be considered by the Board.

(13.3)

The invalidating of any one (1) of these Restrictive Covenants, or any provisions thereof, by any court of competent jurisdiction and/or due to a conflict with any existing or future law shall in nowise affect or impair the full force and effect of all other restrictive covenants, reservations, and provisions contained herein, and in any such event all such other restrictive covenants, reservations, and provisions as are not expressly invalidated thereby shall remain in full force and effect.

(END)

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