HomeMy WebLinkAbout48754875 249.28
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Law Office of Singer & Singer, LLC
26 Upper County Road
P. O. Box 67
Dennisport, Massachusetts 02639
Andrew L. Singer Tel: (508) 398-2221
Marian S. Rose Fax: (508) 398-1568
___________ www.singer-law.com
Myer R. Singer (1938-2020)
Yarmouth Board of Appeals 822 and 834 Route 28, South Yarmouth
SUMMARY OF REASONING
Wise Living Development, LLC, Christopher D. Wise, Manager [“Applicant”], proposes to
convert the adjacent properties at 822 and 834 Route 28 in South Yarmouth [collectively “Property”] to
the condominium form of ownership. The Property is located in the B2 and VCOD2 Zoning Districts and
is shown as Assessor’s Map 33, Parcel 70.1 and Assessor’s Map 41, Parcels 12 and 11.1. The
redevelopment includes merging all of the land into one lot that will be the condominium land. The
vacant land in the rear now known as 30 Frank Baker Road will no longer be used as a separate address
after the merger.
The Applicant recently received permission to redevelop the Property for a mixed-use project
consisting of a Wise Living Retirement Community for senior housing with 120 units (104 studios and 16
one bedrooms) and common resident amenities, including dining, in the 822 Route 28 building, and
continuation of existing commercial uses in the 834 Route 28 building. To satisfy lender requirements,
the Applicant needs to submit the entire Property to the condominium form of ownership. There will be
no change to the approved use or site design. The Primary Unit Condominium will consist of two Units,
one per building. The 822 Route 28 building will be subsequently divided into three Units for the overall
senior living use.
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Conversion to the condominium form of ownership requires a Special Permit in accordance with
Section 104.4.1 of the Yarmouth Zoning By-Law [“Zoning By-Law”]. Under the provisions of Section
104.4.1, any legally existing conforming or nonconforming structu re or use may be converted
to the condominium form of ownership upon the issuance of a Special Permit from the Board of
Appeals. In order to grant such Special Permit, the Board of Appeals must find that there will be
no change of use and that the declaration of condominium documents (a) explicitly define the
existing use and (b) are written with proper management authority to insure maintenance and
repair of public health and safety aspects of the property.
The Applicant respectfully submits that the proposal for the Property qualifies for the requested
Special Permit because:
1. There will be no change in the approved use at the Property. The Planning Board and
Board of Appeals have approved the senior living use in the 822 Route 28 building and
continuation of the existing commercial uses in the 834 Route 28 building;
2. Provisions governing the use of the Primary Units, including reserved rights for the Divided
Units within the 822 Route 28 building, as well as restrictions on such uses are set forth in
Paragraphs 9 and 16 of the submitted draft Condominium Master Deed as well as in
Article VIII of the submitted draft Condominium Declaration of Trust;
3. Provisions governing management authority designed to insure the proper operation,
maintenance, and repair of all aspects of the Condominium, including without limitation, the
Common Elements, Limited Common Elements, and Units, are set forth in various
portions of the submitted draft Condominium documents, including without limitation,
Paragraphs 5, 6, 7, and 9 of the Master Deed and Articles III-V of the Declaration of Trust;
4. There will be no changes to the approved site design or density of the Property, and all of
the conditions set forth in the approvals from the Planning Board and Board of Appeals
will remain in effect with no changes; and
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5. In addition to being in conformance with the provisions of Section 104.4.1 of the Zoning
By-Law, for all of the reasons reviewed by the Board during its prior reviews of the
Property for the redevelopment, the conversion to the condominium form of ownership for
financing purposes will not create any undue nuisance, hazard or congestion, and there will
be no substantial, or in fact any, harm to the established or future character of the
neighborhood or Town.
For the above reasons, the Applicant respectfully requests that the Board makes findings that the
criteria for a Special Permit are satisfied and grant a Special Permit allowing the Property to be converted
to the condominium form of ownership.
draft of January 13, 2021
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NOTE: This Document is subject to Revisions prior to recording with the
Barnstable County Registry of Deeds
822-834 MAIN STREET CONDOMINIUM
822-834 Main Street (route 28)
Yarmouth, Massachusetts
DECLARATION OF TRUST
THIS DECLARATION OF TRUST made as of this ___ day of ____________, 2021, by
Wise Living, LLC, a Massachusetts limited liability company with a principal place of business
located at 935 Main Street, Chatham, Massachusetts 02633 (so long as it shall continue in office
in accordance with the terms of this Declaration of Trust, and all other persons or parties who at
the time in question have been duly elected or designated as trustees in accordance with this
Declaration of Trust and are then in office are hereinafter together called the “Trustees”).
ARTICLE I
Definitions
As used in this Declaration of Trust, the following terms shall have the following
meanings unless the context hereof otherwise requires:
Section 1.1 “Association” shall mean the Trust hereby created.
Section 1.2 “Beneficial Interests” shall have the meaning set forth in Section 2.1
hereof.
Section 1.3 “By-Laws” shall mean the provisions of this Trust as the same may be
amended from time to time.
Section 1.4 “Chapter 183A” shall refer to Chapter 183A of the General Laws of
Massachusetts, as from time to time amended.
Section 1.5 “Common Charges” shall mean all charges hereinafter assessed by this
Trust to the Unit Owners.
Section 1.6 “Common Elements” shall mean the Common Elements of the
Condominium as so defined, described and designated in Section 1.9 hereof and in the Master
Deed.
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Section 1.7 “Common Expenses” shall mean the expenses of administration,
operation, maintenance, repair or replacement of the Common Elements, expenses declared
Common Expenses herein or by Chapter 183A, and betterment and other assessments referred to
in Chapter 183A which are assessed to the Trustees.
Section 1.8 “Common Funds” shall mean all funds held by the Trustees.
Section 1.9 “Condominium” shall mean the 822-834 Main Street Condominium, a
condominium submitted to the provisions of Chapter 183A by the Master Deed.
Section 1.10 “Declarant” shall mean the MacLyn LLC, a Massachusetts limited liability
company with a principal place of business located at 822 Route 28 Main Street, South
Yarmouth, Massachusetts 02664.
Section 1.11 “Declaration of Trust” shall mean this declaration of trust, as amended,
restated or modified from time to time. References in this Declaration of Trust to “hereof”,
“herein” and “hereunder” shall be deemed to refer to the Declaration of Trust and shall not be
limited to the particular text, article or section in which such words appear.
Section 1.12 “Divided Primary Unit” means any Primary Unit within which a Divided
Primary Unit Condominium has been created pursuant to the Primary Master Deed.
Section 1.13 “Divided Primary Unit Board" means the Board of Trustees of the
condominium association of a Divided Primary Unit Condominium. The Board is a Divided
Primary Unit Board within the meaning ascribed to said term herein and in the Primary
Condominium Documents.
Section 1.14 “Divided Primary Unit Condominium” means any condominium created
by a Primary Unit Owner within his Primary Unit by subdividing his Primary Unit into two or
more Individual Units by subjecting his Primary Unit to another master deed as provided in the
Primary Master Deed. The Condominium is a Divided Primary Unit Condominium within the
meaning ascribed to said term herein and in the Primary Condominium Documents.
Section 1.15 “Divided Primary Unit Condominium Association” means the
condominium association of a Divided Primary Unit Condominium. The Condominium
Association is a Divided Primary Unit Condominium within the meaning ascribed to said term
herein and in the Primary Condominium Documents.
Section 1.16 “Individual Unit” or “Individual Units” means each unit in a Divided
Primary Unit Condominium created pursuant to the Primary Master Deed, or all of said
individual Units collectively. The Units are Individual Units within the meaning ascribed to said
term herein and in the Primary Condominium Documents.
Section 1.17 “Units” shall mean the units of the Condominium as so defined and
described in the Master Deed.
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Section 1.18 “Parking Rights” shall mean any right and easement to use Parking
Spaces, as described in the Master Deed.
Section 1.19 “Unit Owner” shall mean the owner or owners of record of any Unit in the
Condominium. “Owners” shall collectively mean Unit Owners.
Section 1.20 “Master Deed” shall mean the Master Deed of the 822-834 Main Street
Condominium, executed by the Declarant, dated the date hereof and recorded
contemporaneously herewith, which Master Deed subjects the Property to Chapter 183A, as such
Master Deed is amended from time to time.
Section 1.21 “Person” or “persons” shall mean any person or persons, whether acting in
an individual, representative or fiduciary capacity, and any firm or firms, corporation or
corporations, partnership or partnerships, and any legal entity or entities whatsoever.
Section 1.22 “Primary By-Laws” means the By-Laws of the Primary Condominium
Association as they may be amended from time to time.
Section 1.23 “Primary Common Elements” means the common areas and facilities of
the Primary Condominium, as more particularly set forth in the Primary Master Deed.
Section 1.24 “Primary Condominium” means the 822-834 Main Street Condominium
which was created by the Primary Master Deed.
Section 1.25 “Primary Condominium Association” means the 822-834 Main Street
Condominium Trust, the organization of unit owners which manages and regulates the Primary
Condominium pursuant to the Primary By-Laws
Section 1.26 “Primary Condominium Documents” means the Primary Master Deed,
the Primary Declaration of Trust including By-Laws and the rules and regulations, if any,
promulgated by the Primary Condominium Association, as they may be amended from time to
time.
Section 1.27 “Primary Master Deed" means the Master Deed recorded herewith by
which the Primary Condominium was created, as amended from time to time.
Section 1.28 “Primary Unit” or “Primary Units” means each of Unit 1 (the
Commercial Primary Unit located at 834 Main Street ) and Unit 2 (the Commercial Primary Unit
located at 822 Main Street) or all of said Primary Units collectively, the Primary Units being the
units of the Primary Condominium, as described in the Primary Master Deed, and includes any
Primary Unit whether or not it has become a Divided Primary Unit.
Section 1.29 “Property” shall mean the properties and assets subjected to Chapter 183A
by the Master Deed and any addition or additions thereto.
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Section 1.30 “Registered Mortgagee” shall mean any holder of a mortgage on a Unit
whose name and address have been furnished to the Trustees.
Section 1.31 “Registry” shall mean the Barnstable County Registry of Deeds.
Section 1.32 “Rules and Regulations” shall mean any rules and regulations for
operation of the Common Elements adopted pursuant to Section 5.13 hereof.
Section 1.33 “Superior Court” shall mean the Superior Court of Barnstable County.
Section 1.34 “Trust Estate” shall mean any and all property, whether real, personal or
mixed, tangible or intangible, held by the Trustees under the terms and provisions of this
Declaration of Trust on behalf of the Association.
Section 1.35 “Trustees” shall have the meaning set forth at the beginning of this
Declaration of Trust.
ARTICLE II
The Trust, Its Purpose, By-Laws and Name.
Section 2.1 Declaration of Trust and Purpose. The Trustees hereby declare that they hold
all of the rights and powers in and with respect to the Common Elements of the Condominium
established by the Master Deed, which are, by virtue of provisions of Chapter 183A of the
Massachusetts General Laws conferred upon or exercisable by the organization of unit owners of
the Condominium, and all other rights, interests, powers, duties, and responsibilities granted to
them as Trustees hereunder or under the Master Deed, as joint tenants with right of survivorship
(if more than one), in trust to exercise, manage, administer and dispose of the same and to
receive the income thereof for the benefit of the Unit Owners of record from time to time of the
Units of the Condominium according to the schedule of undivided beneficial interest in the
Common Elements (hereinafter referred to as the “Beneficial Interests”) set forth in Section 3.1
hereof and in accordance with the provisions of said Chapter 183A this Trust being the
organization of the unit owners established pursuant to the provisions of Section 10 of said
Chapter 183A for the purposes therein set forth.
Section 2.2 Trust Relationship. It is hereby expressly declared that the Association is not
intended to be, shall not be deemed to be, and shall not be treated as, a general partnership,
limited partnership, joint venture, corporation or joint stock company and that the Unit Owners
are cestuis que trustent (beneficiaries), and not partners or associates nor in any other relation
whatever between themselves with respect to the trust estate, and hold no relation to the Trustees
other than of cestuis que trustent (beneficiaries), with only such rights and liabilities as are
conferred upon them as such cestuis que trustent hereunder and under and pursuant to the
provisions of said Chapter 183A.
Section 2.3 By-Laws. This Declaration of Trust, as from time to time amended, shall be
and comprise the By-Laws of the Association.
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Section 2.4 Name of Trust. The name of the Trust created hereby shall be the 822-834
Main Street Condominium Trust and under that name, so far as legal, convenient and practicable,
all business shall be carried on by the Trustees and all instruments shall be executed by the
Trustees. Said name (and the word “Association” whenever used in this Declaration of Trust,
except where the context otherwise requires) shall refer to the Trustees in their capacity as
trustees, and not individually or personally, and shall not refer to the officers, agents or
employees of the Association or to the Unit Owners. The 822-834 Main Street Condominium
Trust is the organization of Primary Unit Owners, consisting of the Owners of Unit 1 (the
Commercial Unit, 834 Main Street) and Unit 2 (the Senior Living Unit, 822 Main Street). Each
Owner of a Primary Unit in the Primary Condominium has the same percentage interest in the
Primary Condominium Association as such Primary Unit Owner's respective interest in the
Common Elements set forth in the Master Deed.
Section 2.5. Applicability of the Declaration of Trust. The provisions of this Declaration
of Trust and the By-Laws therein contained are applicable to the Property of the Primary
Condominium and to the use and occupancy thereof. All present and future owners, mortgagees,
lessees, and occupants of Primary Units and Individual Units, or any portion of either, their
employees and invitees, members of the Primary Board of Trustees of the Primary Condominium
Association and any Divided Primary Unit Condominium Association and Divided Primary Unit
Board of Trustees, and any other persons who may use the Common Elements in any manner are
subject to the Primary Condominium Documents, and to all covenants, agreements, restrictions,
easements and declarations of record referred to in or created by the Master Deed or otherwise
duly effected (collectively referred to herein as “title conditions”). The acceptance of a deed,
mortgage or lease, or the act of occupancy of a Primary Unit or Individual Unit, or any portion,
of either, shall constitute an agreement by a Primary Unit Owner or Individual Unit Owner, or
mortgagee, lessee, occupant or invitee of a Primary Unit or Individual Unit, of any portion
thereof, that the Primary Condominium Documents and the title conditions are accepted, ratified
and will be complied with.
Section 2.6. Applicability of By-Laws to Divided Primary Unit Condominiums. The
provisions of this Declaration of Trust and the By-Laws therein contained are applicable and
shall govern a Divided Primary Unit and a Divided Primary Unit Condominium; provided,
however, that the application of any given provision hereof shall be governed by the provisions
of Article 8 hereof relating to Divided Primary Unit Condominiums.
ARTICLE III
Unit Owners
Section 3.1 Beneficial Interests. The cestuis que trustent shall be those persons who are
the Owners from time to time. The total Beneficial Interest in the Association shall be divided
among the Owners according to the Beneficial Interests appertaining to the Units as indicated in
Exhibit B to the Master Deed, as amended from time to time.
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Section 3.2 Beneficial Interest Held by One Person. Each Beneficial Interest shall be
exercised by one person and shall not be divided among several Unit Owners. To that end,
whenever any Unit is owned of record by more than one person, the several Owners shall (a)
determine and designate which one of such Owners shall be authorized and entitled to cast votes,
execute instruments and otherwise exercise the rights appertaining to such Unit hereunder, and
(b) notify the Trustees of such designation by a notice in writing signed by all of the record
Owners. Any such designation shall take effect upon receipt by the Trustees and may be
changed at any time and from time to time by notice as aforesaid. In the absence of any such
notice of designation, the Trustees may designate any one such Owner for such purposes.
Section 3.3 Annual Meeting. The annual meeting of the Owners shall be held on the
third Wednesday of May of each year, unless a different date is fixed by the Trustees. If that day
shall be a legal holiday at the place where the meeting is to be held, the meeting shall be held on
the next succeeding day not a legal holiday at such place. Purposes for which an annual meeting
is to be held, additional to those prescribed by law or by this Declaration of Trust, may be
specified by the Trustees.
Section 3.4 Special Meeting in Place of Annual Meeting. If no annual meeting has been
held in accordance with the foregoing provisions, a special meeting of the Owners may be held
in place thereof, and any action taken at such special meeting shall have the same force and
effect as if taken at the annual meeting, and in such case all references herein to the annual
meeting of Owners shall be deemed to refer to such special meeting. Any such special meeting
shall be called as provided in Section 3.5 hereof.
Section 3.5 Special Meetings. A special meeting of the Owners may be called at any
time by the Trustees. Upon written application of two (2) Trustees or two (2) Unit Owners, the
Trustees shall call a special meeting. Each call of a special meeting shall state the place, date,
hour and purposes of the meeting.
Section 3.6 Place of Meetings. All meetings of the Owners shall be held at the principal
office of the Association in Massachusetts, or any place in the town in which the Condominium
is located as the Trustees may designate. Any adjourned session of any meeting of the Owners
shall be held at the same place as the initial session, or at the place designated in the vote of
adjournment.
Section 3.7 Notices
Section 3.7.1 Notice of Meetings. A written notice of each meeting of the Owners,
stating the place, date and hour and the purposes of the meeting, shall be given at least seven (7)
days before the meeting to each Owner, by leaving such notice with him at his residence or usual
place of business, by mailing it, postage prepaid, addressed to such Owner at his address as it
appears in the records of the Trust, and to each Registered Mortgagee by mailing it, postage
prepaid, to such mortgagee at its usual or last known address. Such notice shall be given by the
Trustees. No notice of any meeting of Owners need be given to an Owner or mortgagee if a
written waiver of notice, executed before or after the meeting by such Owner or mortgagee, as
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the case may be, or his or its attorney thereunto duly authorized, is filed with the records of the
meeting.
Section 3.7.2 Notices to Owners. Every notice to any Owner required under the
provisions of this Trust or which may be deemed by the Trustees necessary or desirable in
connection with the execution of the Trust created hereby or which may be ordered in any
judicial proceeding shall be deemed sufficient and binding if given in writing by one or more of
the Trustees to such Owner by mailing it, postage prepaid, addressed to such Owner at his
address as it appears upon the records of the Trustees if other than at his Unit in the
Condominium or by mailing or delivering it to such Unit if such Unit appears as the Unit
Owner’s address or if no address appears, at least seven (7) days prior to the date fixed for the
happening of the matter, thing or event for which such notice is given. The Owner shall have the
responsibility of providing the Trustees with any address, other than the Unit, to which they
desire notices to be mailed.
Section 3.8 Identification of Owners; Trustees Records of Ownership conclusive. On
each sale of a Unit, the new Owners shall have the duty to give the Trustees written notice of
their purchase and of the correct name of the Owners. Records of ownership maintained by the
Trustees shall be conclusive for all matters, including all actions taken at Owners’ meetings. The
Trustees shall have no obligation to examine the records of the Registry of Deeds to determine
ownership of Units, and all actions (including without limitation amendments to this Trust or to
the Master Deed) shall be valid if taken by the requisite number of Owners as they appear on the
Trustees’ list of Owners.
Section 3.9 Quorum of Owners. At any meeting of the Owners, a quorum shall consist of
at least fifty-one (51%) percent in interest of all Beneficial Interests, except when a larger
quorum is required by law or by this Declaration of Trust. Any meeting may be adjourned from
time to time by majority in interest of the Beneficial Interests voting upon the question, whether
or not a quorum is present, and the meeting may be held as adjourned without further notice.
Section 3.10 Action by Vote. When a quorum is present at any meeting, a plurality in
interest of the Beneficial Interests voting for election to any office shall elect to such office, and
a majority in interest of the total 100% Beneficial Interests upon any question other than an
election to an office shall decide the question, except when a larger vote is required by law, by
the Master Deed or by this Declaration of Trust. No ballot shall be required for any election
unless requested by an Owner present or represented at the meeting and entitled to vote in the
election.
Section 3.11 Action by Writing. Any action to be taken by the Owners may be taken
without a meeting if all Owners entitled to vote on the matter consent to the action by writings
filed with the records of the meetings of the Owners. Such consents shall be treated for all
purposes as a vote at a meeting.
Section 3.12 Proxies. Owners entitled to vote may vote either in person or by proxy in
writing. The Trustees shall make any necessary determinations in their sole discretion as to the
validity of proxies.
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Section 3.13 Electronic Voting.
Notwithstanding the foregoing provisions contained in this Article III, the Trustees may
authorize, with respect to any meeting of Unit Owners or vote without a meeting, voting by mail-
in ballot and/or by electronic means using electronic signatures (“electronic ballot”) and, if so
authorized, votes validly cast by mail-in or electronic ballot shall be counted for quorum and
voting purposes in the same manner as votes cast in person or by proxy at a meeting of the Unit
Owners. If mail-in and/or electronic ballots will be authorized for use in connection with a
meeting or a vote without a meeting, the Trustees shall provide the Unit Owners, in the notice of
the meeting (or, in the case of a vote without a meeting, in a notice thereof given at least ten (10)
days prior to such vote) with (i) the physical address or electronic (e.g., email) address for the
delivery, acceptance and counting of mail-in ballots or electronic ballots, as applicable, (ii) the
date and time by which such mail-in or electronic ballot must be received by the Trust at such
address to be counted for quorum and voting purposes at such meeting or in such vote without a
meeting, and (iii) if a meeting is to be held, a description of such other method(s) of voting as
may be available to Unit Owners who attend such meeting. If voting by more than one method is
authorized for a meeting or for a vote without a meeting, only one such method of voting may be
used by each Unit Owner. Determinations as to the validity of mail-in and electronic ballots
shall be made by the Trustees, in their discretion. Unless prohibited by applicable law,
submission of any electronic ballot shall be deemed an agreement by such Unit Owner and the
Trust to conduct that transaction by electronic means with an electronic signature. The Trustees
may adopt, amend and rescind Rules and Regulations from time to time establishing procedures
for the use of mail-in and electronic ballots and for the administration of such votes, including,
without limitation, for determining the validity of votes cast by mail-in or electronic ballots.
For all quorum and voting purposes, a mail-in ballot or electronic vote complying with
the applicable provisions of Article III and shall have the same effect as a vote by such Unit
Owner at a meeting in person or by proxy.
The use of mail-in ballots or electronic voting for or in connection with any annual or
special meeting of the Unit Owners shall not preclude the calling or holding of a meeting at
which votes are to be cast, or also may be cast, in person or by proxy.
ARTICLE IV
Primary Trustees
Section 4.1Trustees.
Subsection 4.1.1 Number of Trustees. The Primary Board shall consist of two (2)
members, which are together referred to as the “Trustees”. The number of Trustees may be
changed only by the unanimous vote of all Primary Unit Owners. Except for initial Trustees, all
Trustees must own a Primary Unit or be an officer, director, trustee, employee, manager or
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attorney-in-fact of an Owner of a Primary Unit. A Trustee shall hold office until such time as his
successor takes office.
Subsection 4.1.2 Primary Board of Trustees. The Initial Primary Board of Trustees shall
be composed of the individuals or entities named in Paragraph 10 of the Master Deed, who shall
hold office until the First Annual Meeting of the Primary Unit Owners. Thereafter each Trustee
shall be appointed for a full one-year term. One Trustee shall be appointed at each Annual
Meeting by each of the owners of Unit 1 (the Commercial Unit) and Unit 2 (the Senior Living
Unit). Any Trustee may resign his position at any time. In the event of resignation or death, a
Trustee shall be replaced in the manner set forth in Section 4.13 of this Article. For each change
in the Board of Trustees, a person last appearing of record with said Deeds to be members of the
Board of Trustees, or the Primary Unit Owners shall file with said Deeds an instrument
certifying as to the membership of the new Board of Trustees and their terms.
Subsection 4.1.3 Vacancies, Appointment of Successor Trustees and Acceptance. A
vacancy in the Primary Board of Trustees, caused by any reason, shall be filled by the
appointment of a natural person or entity to act as a new Trustee, by the Primary Unit Owner
who appointed the vacating Trustee. Any Trustee appointed to fill a vacancy shall serve until the
next Annual Meeting, and thereafter until his successor has been duly appointed.
The foregoing provisions of this Section notwithstanding, despite any vacancy in the
office of Trustee, however caused and for whatever duration, the remaining Trustee(s) shall
continue to exercise and discharge all of the powers, discretions and duties hereby conferred or
imposed upon the Trustee(s)
Each person hereafter elected as a Trustee shall sign and acknowledge in the manner
required in Massachusetts for the acknowledgment of deeds, an acceptance of such election.
Appointments of Trustee(s) shall be effective upon recording with the Registry the
instrument of appointment and acceptance and such person shall then become a Trustee and shall
be vested with the title to the trust property jointly with the other Trustee(s) then in office
without the necessity of any act of transfer or conveyance. Notwithstanding any other provisions
in this Declaration of Trust contained, the failure to record such appointment and acceptance in
the Registry shall in no way affect the validity of such Trustees’ election
Subsection 4.1.4 Trustee Action. In any matter relating to the administration of the Trust
hereunder and the exercise of the powers hereby conferred, the Trustees shall act by majority
vote with each such Trustee vote being weighted in value equal to the percentage of the
Beneficial Interest allocated to the Unit appointing such Trustee (except as otherwise specified in
other provisions of this Declaration of Trust or in the Master Deed) at any duly called meeting at
which a quorum, as defined in Section 4.1.7, is present. The Trustees may also act without a
meeting, provided however that whether at a meeting or not, no action or vote (except in respect
of a matter of collection against a unit or unit violation of the terms of the Master Deed or this
Trust may be taken if in anyway adversely affecting a particular Primary Unit or a particular
Primary Unit appurtenant or exclusive rights unless the Trustee appointed such Unit shall join in,
or consent to, such vote or action.
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Any Trustee may attend and participate in (including for voting purposes) a Board
meeting, or any Board meeting may be conducted, through the use of any means of remote
communication by which Trustees not physically present in the same location may hear all other
Trustees participating in such meeting or may otherwise communicate with each other Trustee
on a substantially simultaneous basis. For purposes hereof, the term “remote communication”
shall include, without limitation, any communication via conference telephone, videoconference,
the internet (including so-called “online” communications), or other electronic communications
including electronic mail. All Trustees shall be advised of the means of remote communication
that shall apply to a particular meeting of the Board of Trustees in advance of the meeting
Any action required or permitted to be taken under authorization voted at a meeting of
the Trustees, may be taken without a meeting if, before or after the action, all members of the
Board consent to the action in writing or by email or other electronic transmission. The written
consents, or printed copies of any consent transmitted by email or other electronic means, shall
be filed with the minutes of the proceedings of the Trust. The consent shall have the same effect
as a vote of the Board for all purposes
Subsection 4.1.5 Bond or Surety. Except as may be required under Section 5.6, no
Trustee, whether an original or successor Trustee, shall be obliged to give any bond or surety or
other security for the performance of any of his or her duties hereunder, provided, however, that
Owners entitled to a majority of the Beneficial Interest of this Trust may at any time by
instrument in writing, signed by them and delivered to the Trustee or Trustees affected, require
that any one or more of the Trustees shall give bond in such amount and with such sureties as
shall be specified in such instrument. All expenses incident to any such bond shall be charged as
a Common Expense of the Condominium.
Subsection 4.1.6 Powers and Duties. The Trustees shall have the powers and duties
necessary for the administration of the affairs of the Association and the Primary Condominium
and may do all such acts and things except as by law or by the Master Deed or by this
Declaration of Trust may not be delegated to the Trustees by the Owners. Such powers and
duties of the Trustees shall include, but shall not be limited to, the following:
(a) Operation, care, upkeep, and maintenance of the Common Elements;
(b) Determination of the Primary Condominium Common Expenses.
(c) Collection of the Common Charges from the Primary Unit Owners;
(d) Employment, appointment and dismissal of employees and agents of the Trust, as
necessary or advisable, including, but not limited to managers, officers, board of
managers, brokers, engineers, architects, servants, assistants and counsel (which
counsel may be a firm of which one or more of the Trustees are members) as they
shall deem proper for the purchase, sale or management of the Trust property, or
any part or parts thereof, or for conducting the business of the Trust, and may
define their respective duties and fix and pay their compensation, and the Trustees
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shall not be answerable for the acts and defaults of any such person. The Trustees
may delegate to any such agent, manager, officer, board, broker, engineer,
architect, employee, servant, assistant or counsel any or all of their powers
(including discretionary powers, except that the power to join in amending,
altering, adding to, terminating or changing this Declaration of Trust and the trust
hereby created shall not be delegated) all for such times and purposes as they shall
deem proper. Without hereby limiting the generality of the foregoing, the
Trustees may designate one of their own number to be the Managing Trustee or
Managing Trustees for the management and administration of the Trust property
and the business of the Trust, or any part or parts thereof;
(e) Adoption, amendment and rescission of Rules and Regulations covering the
details of the operation and use of the Common Elements, and subject in all
events to the rights of the Owners, to use their respective Units for
all purposes permitted by the Master Deed;
(f) Opening of bank accounts on behalf of the Association and designating the
signatories required therefor;
(g) Leasing, managing and otherwise dealing with the Common Elements and any
other properties or facilities for which easements or gifts are conveyed to, from,
or held by, the Trust, including without limitation exercising to the exclusion of
the rights of all others to do so, all rights and powers of the owner of the Property
with respect to extending, modifying and exercising of rights under easements,
agreements, leases, licenses and other matters of record, and other easements and
the like which burden or benefit the Property, even if the same extend beyond the
possible duration of this Trust;
(h) Enforcement of obligations and responsibilities as applicable to the Condominium
Property, including matters of record, such as easements, leases, agreements,
licenses and other matters of record, which burden or benefit the Property,
notwithstanding the fact that the owner of certain Primary Units, having
exclusive, or appurtenant, rights as to certain portions of the common area may
directly have the obligation to fulfil certain of such related responsibilities and
obligations;
(i) Owning, conveying, encumbering, leasing and otherwise dealing with Units
conveyed to the Association or purchased by it;
(j) Obtaining of insurance for the Property, pursuant to the provisions of Section 5.6
hereof;
(k) Making of repairs, additions and improvements to, or alterations of, the Property
and repairs to and restoration of the Property in accordance with the other
provisions of this Declaration of Trust;
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(l) Enforcing obligations of the Owners, allocating income and expenses, levying
reasonable fines against the Owners for violations of the Rules and Regulations or
of the provisions of Article V hereof, and in the case of persistent violation of the
Rules and Regulations or of the provisions of Article V hereof by an Owner,
requiring such Owner to post a bond to secure adherence thereto. Collection of
fines may be enforced against the Owner or Owners involved as if the fines were
Common Charges owed by the particular Owner or Owners;
(m) Retaining the Trust property, or any part or parts thereof, in the same form or
forms of investment in which received or acquired by them so far and so long as
they shall think fit, without liability for any loss resulting therefrom;
(n) Selling, assigning, conveying, transferring, exchanging and otherwise dealing
with or disposing of the Trust property, but not the whole thereof, free and
discharged of any and all trusts, at public or private sale, to any person or persons
for cash or on credit, and in such manner and on such restrictions, stipulations,
agreements and reservations as they shall deem proper, including the power to
take back mortgages to secure the whole or any part of the purchase price of any
of the Trust property sold or transferred by them, and execute and deliver any
deed or other instrument in connection with the foregoing;
(o) Purchasing or otherwise acquiring title to, and renting, leasing or hiring from
others for terms which may extend beyond the termination of this Trust any
property or rights to property, real or personal, and own, manage, use and hold
such property and such rights;
(p) Borrowing or in any other manner raising such sum or sums of money or other
property as they shall deem advisable in any manner and on any terms, evidencing
the same by notes, bonds, securities or other evidences of indebtedness, which
may mature at a time or times, even beyond the possible duration of this Trust,
and executing and delivering any mortgage, pledge or other instrument to secure
any such borrowing;
(q) Investing and reinvesting the Trust property, or any part or parts thereof, and from
time to time, as often as they shall see fit, changing investments, including
investment in all types of securities and other property, of whatsoever nature and
however denominated, all to such extent as to them shall seem proper, and
without liability for loss even though such property or such investments shall be
of a character or in an amount not customarily considered proper for the
investment of trust funds or which does or may not produce income;
(r) Incurring such liabilities, obligations and expenses and paying from the principal
or the income of the Trust property in their hands all such sums as they shall deem
necessary or proper for the furtherance of the purposes of this Trust;
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(s) Determining whether receipt by them constitutes principal or income or surplus
and allocating between principal and income and designating as capital or surplus
any of the funds of the Trust;
(t) Voting in such manner as they shall think fit any or all shares in any corporation
or trust which shall be held as Trust property, and for that purpose giving proxies
to any person, persons or to one or more of their number, voting, waiving any
notice or otherwise acting in respect of any such shares;
(u) Maintaining such offices and other places of business as they shall deem
necessary or proper and engaging in business in Massachusetts or elsewhere; and
(v) Doing anything and everything else necessary and proper for the sound
management of the Primary Condominium.
Provided, however, that, except as provided by statute in case of condemnation or substantial
loss to the Common Elements of the Condominium, unless at least fifty-one (51%) percent of the
mortgagees holding first mortgages on Units (based upon one vote for each first mortgage) have
given their prior written approval, notwithstanding any other provision of this Declaration of
Trust, neither the Owners nor the Trustees (acting in their capacity as Trustees) shall be entitled
to:
(a) by act or omission, seek to abandon or terminate the Condominium;
(b) change the Beneficial Interest or obligations of any individual Unit for the
purposes of: (i) levying assessments or charges or allocating distributions of
hazard insurance proceeds or condemnation awards, or (ii) determining the
Beneficial Interest of each Unit in the Common Elements (other than in
connection with Declarant’s subdivision of Units as permitted in the Master Deed,
which shall not require mortgagee consent);
(c) partition any Unit (other than in connection with the subdivision or combination
of Units as permitted in the Master Deed, which shall not require mortgagee
consent);
(d) by act or omission, seek to abandon, partition, subdivide, encumber, sell or
transfer the Common Elements, provided, however, that the granting of easements
for public utilities or for other public purposes consistent with the intended use of
the Common Elements by the Condominium, and the exercise of other actions
with respect to granting of special rights of use or easements of Common
Elements contemplated herein or in the Trust shall not be deemed an action for
which any prior approval of a mortgagee shall be required under this Subsection;
and further provided that the granting of rights by the Trustees to connect
adjoining Units shall require the prior approval of only the mortgagees of the
Units to be connected. (The exercise by Declarant of the rights reserved to it
pursuant to the Master Deed shall not be subject to this restriction);
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(e) use hazard insurance proceeds for losses to any property for other than the repair,
replacement or reconstruction of such Condominium property.
Any such consent shall be deemed to be given if a Registered Mortgagee fails to submit a
response to any written proposal for an amendment within 30 days after it received proper notice
of the proposal, provided the notice was delivered by certified or registered mail, with a “return
receipt” requested.
Subsection 4.1.7 Quorum. At any meeting of the Trustees, one (1) of the Trustees ) then
in office shall constitute a quorum. Any meeting may be adjourned from time to time by a
majority of the votes cast upon the question, whether or not a quorum is present, and the meeting
may be held as adjourned without further notice.
Subsection 4.1.8 Action Without a Meeting. Any action required or permitted to be taken
at any meeting of the Trustees may be taken without a meeting if all members of the Board of
Trustees consent to the action in writing and the written consents are filed with the records of the
meetings of the Board. Such consents shall be treated for all purposes as a vote at a meeting.
Subsection 4.1.9 No Personal Liability. No Trustee shall under any circumstances or in
any event be held liable or accountable out of his or her personal assets or be deprived of
compensation by reason of any action taken, suffered or omitted in good faith in the reasonable
belief that the action was in the best interests of this Trust, or be so liable, accountable or
deprived by reason of honest errors of judgment or mistakes of fact or law or by reason of the
existence of any personal or adverse interest or by reason of negligence or any other reason
except his own personal and willful dishonesty, malfeasance and defaults.
Subsection 4.1.10 Trustees May Deal with the Condominium.
No Trustee shall be disqualified by his office from contracting or dealing with the Trustees or
with one or more Owners (whether directly or indirectly because of his interest individually or
the Trustees’ interest or any Owner’s interest in any corporation, firm, trust or other organization
connected with such contracting or dealing or because of any other reason) as vendor, purchaser
or otherwise, nor shall any such dealing, contract or arrangement entered into in respect of this
Trust in which any Trustee shall be interested in any way be avoided nor shall any Trustee so
dealing or contracting or being so interested be liable to account for any profit realized by any
such dealing, contract or arrangement by reason of such Trustee’s holding office or of the
fiduciary relation hereby established, provided the Trustee shall act in good faith and shall
disclose the nature of his interest before entering into the dealing, contract or arrangement.
Subsection 4.1.11 Meetings of Trustees. The Trustees shall meet annually on the date of
the annual meeting of the Owners. Other meetings may be called by any Trustee, provided
however, that written notice of each meeting stating the place, day and hour thereof shall be
given at least seven days before such meeting to each Trustee. Such meetings shall be conducted
in accordance with such rules as the Trustees may adopt. Any Trustee may waive notice of any
meeting in writing. Attendance by a Trustee at any meeting shall constitute waiver of notice. If
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all the Trustees are present at any meeting, no notice shall be required and any business may be
transacted at such meeting.
Section 4.1.12 Indemnification. The Association shall, to the extent legally permissible,
indemnify each of its Trustees (including any person who serves at its request as a director,
officer, partner, Trustee or the like of another organization in which it has any interest, as a
shareholder, creditor or otherwise) both out of the Trust property and by the Owners against all
liabilities and expenses, including, without limiting the generality of the foregoing, amounts paid
in satisfaction of judgments, in compromise or as fines and penalties, and counsel fees,
reasonably incurred by him in connection with the defense or disposition of any action, suit or
other proceedings, whether civil or criminal, in which he may be involved or with which he may
be threatened, while in office or thereafter, by reason of his being or having been such a Trustee,
except with respect to any matters to which he shall have been adjudicated in any proceeding to
have acted in bad faith or with willful misconduct or reckless disregard of his duties or not to
have acted in good faith in the reasonable belief that his action was in the best interest of the
Trust. The Trustees may purchase such insurance against such liability as they shall determine
is reasonable and necessary, the cost of such insurance to be a common expense of the
Condominium. Each Owner shall be personally liable for all sums lawfully assessed for his
share of the Common Expenses of the Condominium and for his proportionate share of any
claims involving the Trust property in excess thereof, all as provided in Sections 6 and 13 of
Chapter 183A. The right of indemnification hereby provided shall not be exclusive of or affect
any other rights to which any or officer may be entitled herein or by contract or otherwise under
law. As used in this Section, the term “Trustee” and includes their respective heirs, executors
and administrators. Nothing contained in this Section shall affect any rights to indemnification
to which personnel other than Trustees may be entitled by contract or otherwise under law.
ARTICLE V
Operation of the Property
Section 5.1 Determination of Common Expenses and Fixing of Common Charges. At
least thirty (30) days prior to the commencement of each fiscal year of this Trust, the Primary
Trustees shall estimate the Common Expenses expected to be incurred during the next fiscal year
together with a reasonable provision for contingencies and reserves, and after taking into account
any undistributed surplus accumulations from prior years not set aside for reserve or contingent
liabilities, shall determine the assessment to be made for the next fiscal year, as follows:
General Budget: For all expenses (including reserves) of the
Primary Condominium, to be assessed to all Units in the
Primary Condominium.
Such assessments (except as otherwise specifically allocated under this article or in the master
Deed) shall be allocated among the Owners according to the terms and provisions hereof, and to
the Units’ respective Beneficial Interest. The Common Expenses may include real estate taxes
until separately assessed to the Owners, general maintenance costs for the Common Elements,
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and the premiums for such insurance as the Trustees shall obtain pursuant to Section 5.6;
provided, however, that no Owner who receives an exemption from real estate taxes from the
Town of Yarmouth Collector Treasurer shall be liable for payment of any such taxes. The
Trustees may charge any penalties for late payment of taxes imposed by the municipal
authorities to the Unit(s) responsible therefor. The Trustees shall advise all Primary Owners,
promptly in writing, of the amount of the Common Charges payable by each of them,
respectively, as determined by the Trustees, as aforesaid, and shall furnish copies of each budget
on which such Common Charges are based, to all Primary Owners.
The Trustees shall promptly render statements to the Primary Owners for their respective
shares of assessments, and such assessment shall, unless otherwise provided therein, be due and
payable within thirty (30) days after the same are rendered. In the event that the Trustees shall
determine during any fiscal year that the assessment so made is less than the Common Expenses
actually incurred, or in the reasonable opinion of the Trustees likely to be incurred, the Trustees
shall make a supplemental assessment or assessments and render statements therefor in the
manner aforesaid. The Trustees may in their discretion provide for payments of assessments in
monthly or other installments. The amount of each such assessment shall be a personal liability
of each Primary Owner (jointly and severally among the owners of each Unit) and, if not paid
when due, or upon the expiration of such grace period as the Trustees may (but need not)
designate, shall carry a late charge and accrue interest in such amount or at such rate as the
Trustees shall determine, and any such interest, late charge and attorneys’ fees for collection as
herein provided, shall constitute a lien on the Primary Unit pursuant to the provisions of Section
6 of Chapter 183A. Each Primary Owner, by acceptance of a Unit Deed, agrees to pay all costs
and expenses, including reasonable attorneys’ fees, incurred by the Trustees in collection of said
assessments for Common Expenses and enforcement of said lien.
Notwithstanding the foregoing provisions of this Section 5.1, and in addition to the
obligations of Unit Owners in regard to areas over which they have exclusive use, all Common
Charges to meet Common Expenses pertaining to the following Common Elements (as
reasonably allocated to such Common Elements) shall be the responsibility of the Owner of the
Primary Unit(s) and so allocated and assessed by the Primary Board of Trustees to the Primary
Unit Owners and to the Primary Condominium Association, as set forth hereinafter:
(a) All costs and expenses in regard to the Parking (or Parking Rights) as set forth in
the Master Deed shall be shared equally by the Primary (or Divided Primary) Unit
Owners with designated or exclusive use parking rights.
The Trustee(s) shall periodically calculate such Parking Related, and to the extent
not paid directly by the Unit Owners having such rights and render statements
regarding same to the Unit Owners with exclusive parking space rights and such
amounts shall be paid, and non-payment subject to enforcement, in the same
manner as Common Charges.
c. As to any “common area”, used and/or shared by both Primary Units, water or
sewer system, the water and sewer charges assessed against the Primary
Condominium shall be allocated and assessed by the Primary Board to the
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respective Primary Units and the Primary Condominium Association on the basis
of flow meters installed to measure water usage by each respective Primary Unit
and the Common Elements, or if no such metering on the basis of Unit percentage
interest;
d. To the extent that the Primary Board can reasonably ascertain the proportion of
any given Common Charges attributable to the usage by or the requirements of
the respective Primary Units (or the respective Primary Units and the Common
Elements) the Primary Board may allocate and assess such Common Charges to
the respective Primary Units (or the respective Primary Units and the
Condominium Association), based upon the proportion attributable to the Primary
Units (or the Primary Units and the Common Elements).
Any assessment to the Primary Condominium Association pursuant to the foregoing shall
be reallocated and assessed by the Primary Board of Trustees to the Primary Unit Owners on the
basis of their respective percentages of interest in the Common Elements.
The Primary Board shall advise all Primary Unit Owners, promptly in writing, of the
amount of the Common Charges (and the) portion of such Common Charges attributable to each
of the items set forth in subsections in this section above payable by each of them, respectively,
as determined by the Primary Board as aforesaid and shall furnish copies of each budget on
which such Common Charges are based to all Primary Unit Owners.
Such determination and notification shall be made prior to December 31 of the preceding
calendar year, and there shall be a redetermination and notification made as of the end of any
calendar month in which the budget is revised.
Section 5.1.1 Reserve Funds. The Primary Owners shall be liable for Common Expenses
and, subject to the Trustees’ judgment as to reserve and contingent liability funds stated above,
shall be entitled to surplus accumulations, if any, of the Condominium in proportion to their
Beneficial Interest in the Trust. The Trustees may from time to time distribute surplus
accumulations, if any, among the Primary Owners in such proportions. The Trustees shall set
aside from the regular monthly payments of Common Charges an amount adequate and
appropriate to provide a reserve for the periodic repair and/or replacement of the Common
Elements and other capital purposes and may, to the extent consistent with these purposes, use
the funds so set aside for the reduction of indebtedness or other lawful capital purpose, or subject
to the provisions of these By-Laws and the provisions of Chapter 183A, for the repair,
replacement, rebuilding, restoration or improvement of the Common Elements. Such reserves
shall be maintained in a separate and segregated account(s) to be known as the Capital Expense
Reserve Account(s) and the funds so set aside shall not be deemed common profits available for
distribution; but, rather, shall be considered as property of the Trust held for the account of the
Owners in accordance with their respective Beneficial Interests. The Trustees shall also maintain
a working capital fund in an amount as the Trustees shall in their judgment determine as
adequate and appropriate, to provide available funds to meet unforeseen expenditures, to cover
cash flow requirements, or to acquire additional equipment or services deemed by the Trustees as
necessary or desirable, and may, to the extent consistent with these purposes, use the funds so set
aside for operating expenses consistent with the provisions of these By-Laws. Such reserve shall
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be maintained in a separate and segregated account to be known as the Working Capital Reserve
Account and the funds so set aside shall not be deemed common profits available for
distribution, but, rather, shall be considered as the property of the Trust held for such purposes.
Section 5.1.2 Trustees Authorize Tax Abatement Applications. Until the Units have been
separately assessed, no Primary Unit Owner shall file an application for abatement of real estate
taxes without the written approval of the Trustees, which approval shall not be unreasonably
withheld.
Section 5.1.3 Application of Common Funds. The Trustees shall expend common funds
only for the purposes permitted by this Trust and by Chapter 183A.
Section 5.1.4 Notice of Default to Mortgagees. Upon written request addressed to the
Trustees by a Registered Mortgagee of any Unit, the Trustees shall notify such mortgagee of any
default by the mortgagor of such Unit in the performance of the mortgagor’s obligations under
the Master Deed or this Declaration of Trust.
Section 5.2 Payment of Common Charges. All Primary Owners shall be obligated to pay
the Common Charges assessed by the Trustees pursuant to the provisions of Section 5.1,
monthly, in advance or on such other regular installment basis as the Trustees shall determine.
No Owner shall be liable for the payment of any part of the Common Charges assessed against
his Primary Unit subsequent to a sale, transfer or other conveyance. Except as waived in writing
by the Trustee, a purchaser of a Primary Unit shall be liable for the payment of Common
Charges assessed and unpaid against such Primary Unit prior to the acquisition by him of such
Unit, except that a first mortgagee who obtains title to a Unit pursuant to the remedies provided
in the mortgage or foreclosure of the mortgage shall not be liable for, and such Primary Unit
shall not be subject to, a lien for the payment of Common Charges assessed prior to the
acquisition of title to such Primary Unit by such first mortgagee, with the sole exception of the
charges specified in Section 6 of Chapter 183A, as amended (except for a pro rata share of such
assessments or charges resulting from a pro rata reallocation of such assessments or charges to
all Primary Units, including the mortgaged Primary Unit).
Section 5.3 Default in Payment of Common Charges. In the event of a default in payment
of Common Charges, the Primary Owner shall be responsible to pay all late charges, interest and
attorneys’ fees and costs, as assessed by the Trustees. The foregoing shall be in addition to any
and all other remedies the Trustees may have.
Section 5.4 Collection and Recovery of Unpaid Common Charges. In any action brought
by the Trustees to foreclose a lien on a Unit because of unpaid Common Charges upon an entry
of judgment of foreclosure the Owner shall be required to pay a reasonable rental for the use of
his Unit. The Trustees, acting on behalf of all Owners, shall have the power to purchase such
Unit at the foreclosure sale and to acquire, hold, lease, mortgage, convey or otherwise deal with
the same. A suit to recover a money judgment for unpaid Common Charges shall be
maintainable without foreclosing or waiving the lien securing the same. In addition to
commencing any action to collect unpaid Common Charges or to foreclose the lien for such
charges, the Trustees may elect to collect any rents being paid to the defaulting Owner, in
accordance with provisions of Section 6 of Chapter 183A, as amended.
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Section 5.5 Statement of Common Charges. The Trustees shall promptly provide any
Owner and potential purchaser of a Unit so requesting the same in writing, with a written
statement in recordable form of all unpaid Common Charges due from such Owner.
Notwithstanding any other provision of this Article V, any certificate setting forth the amount of
unpaid common expenses assessed against any Owner as provided by subsection (d) of Section 6
of Chapter 183A shall be conclusive evidence of the facts stated therein if signed by any two
Trustees then in office (or one if there be only one in office).
Section 5.6 Insurance. The Trustees shall be required to obtain and maintain, to the extent
obtainable at reasonable cost, and permitted by applicable law, master policies of insurance of
the following kinds:
(1) Casualty or physical damage coverage insuring the buildings and all other
insurable improvements forming part of the Condominium (including all of the
Common Elements , (but excluding the Units which, as set forth below, are
separately insured by the each Unit Owner) and excluding only personal
property of the Owners therein), now existing or as they may from time to time be
increased by amendment to the Master Deed, together with the service machinery,
apparatus, equipment and installations located in the Condominium and existing
for the provision of central services or for the Common Elements, such insurance
to name the Trustees as insureds as Trustees for the benefit of all Owners and
their mortgagees, and, to the extent obtainable, to name as insureds said Owners
and their mortgagees, in an amount at least equal to the full replacement value of
the Property without deduction for depreciation, with a standard Replacement
Cost Endorsement and an Agreed Amount Endorsement or its equivalent, if
available (exclusive of land footings, excavations, foundations and such other like
items as are normally excluded from coverage), against (i) loss or damage by fire
and other hazards covered by the standard extended coverage endorsement and
(ii) such other hazards and risks as the Trustees from time to time in their
discretion shall determine to be appropriate, including but not limited to sprinkler
leakage, debris removal, cost of demolition, vandalism, malicious mischief,
windstorm and water damage, boiler and machinery explosion or damage and
plate glass damage;
(2) Workers’ Compensation Insurance and Employer’s Liability Insurance for
employees (if any) of the Association;
(3) Comprehensive public liability insurance including so- called “Broadening
Endorsement” with Severability of Interest Endorsement or equivalent coverage
covering all of the Common Elements and including protection against water
damage liability, liability for non-owned and hired automobiles, liability for
property of others, elevator collision and such other risks as are customarily
covered in similar projects, in each instance to the extent applicable to the
Condominium, in such amounts as shall be determined by the Trustees, covering
the Trust, the Trustees, the Owners and any manager or managing agent of the
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Condominium, with limits of not less than a single limit of $1,000,000 for claims
for bodily injury or property damage arising out of one occurrence, and with an
endorsement to cover liability of any insured to other insureds. The Trustees shall
review such limits at least annually;
(4) Fidelity Insurance as mandated by the M.G.L. Chapter 183A;
(5) Directors and Officers Liability Insurance with at least the same coverage limit as
the comprehensive general liability insurance required above.
(6) Such other insurance as the Trustees may determine;
All such policies of physical damage insurance shall contain, to the extent available,
waivers of subrogation as to any claim against the Condominium, the Trustees, its agents and
employees, Owners, their respective employees, agents and guests, and members of the family of
any Owner who reside with said Owner, except in cases of arson and fraud, and of any defense
based on invalidity arising from the acts of the Owners over which the Trustees have “no
control” and shall provide that (a) such policies may not be canceled or substantially modified
without at least thirty (30) days’ prior written notice to all of the insureds, including all
Registered Mortgagees, and (b) the coverage thereof shall not be terminated for nonpayment of
premiums without thirty (30) days notice to all of the insureds including each Registered
Mortgagee. Recovery thereunder shall not be affected on account of the availability of proceeds
under any policies obtained by individual Unit Owners covering their own Units.
Unit Owners shall carry fire and casualty insurance for their own benefit insuring their
Unit’s improvements, fixtures and contents and public liability insurance insuring against all
claims, liabilities and damage based upon or arising out of bodily injury and property damage
occurring in their respective Unit, or if a Unit Owner elects to self insure, the Unit Owner shall
provide the Trustees with evidence, reasonably satisfactory to the Trustees, of the Unit Owner’s
financial condition and ability to provide a self-insurance reserve.
Subsection 5.6.1 Payment to Trustees in Case of Loss. Subject to the provisions of
Section 5.7, such master policies shall provide that all casualty loss proceeds thereunder shall be
paid to the Trustees as insurance trustees under these by-laws. The duty of the Trustees as such
insurance trustees shall be to receive such proceeds as are paid and to hold, use and disburse the
same for the purposes stated in this Section and Section 5.7. If repair or restoration of the
damaged portions of the Condominium is to be made, all insurance loss proceeds shall be held in
shares for the Trust and the owners of damaged Units in proportion to the respective costs of
repair or restoration of the damaged Common Elements and damaged Units, with each share to
be disbursed to defray the respective costs of repair or restoration of the damaged Common
Elements and damaged Units, and with any excess of any such share of proceeds above such
costs of repair or restoration to be paid to the Trust or Unit Owners for whom held upon
completion of repair or restoration; but, if pursuant to section 5.7, restoration or repair is not to
be made, all insurance loss proceeds shall be held as common funds of the Trust and applied for
the benefit of Owners in proportion to their beneficial interests in the Trust if the Condominium
is totally destroyed, and, in the event of a partial destruction, after payment for such restoration
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of the Common Elements as the Trustees may determine, to those Unit Owners who have
suffered damage in proportion to the damage suffered by them. Such application for the benefit
of Owners shall include payment directly to a Owner’s mortgagee if the mortgage so requires.
Section 5.6.2 Fidelity Coverage. The Trustees shall purchase and maintain fidelity
coverage to protect against dishonest acts on the part of persons responsible for handling funds
belonging to or administered by the Condominium Trust. The fidelity bond or insurance shall
name the Condominium Trust as named insured and shall be in an amount not less than one and
one-half the Trust’s estimated annual operating expenses and reserves. Such bond or insurance
shall include within coverage, by endorsement if necessary, those persons, including without
limitation the Trustees, who serve the Trust without compensation. The requirements of this
paragraph shall not restrict the Trustees from purchasing at common expense such further
fidelity coverage or the like as they shall determine.
Section 5.6.3 Unit Owner Insurance Of Units. Notwithstanding any of the foregoing
provisions of this Section 5.6 to the contrary, the master or blanket type of hazard insurance
policy to be maintained by the Trustees shall not provide coverage for the Units or, to the extent
part of the Common Elements, the building containing any such Unit. Accordingly, the Unit
Owner of each of the Units shall be responsible to obtain and maintain a hazard insurance policy,
with premiums being paid by such Owner, covering such Owner’s Unit (including permanently
installed improvements and betterments that are normally included in coverage) and the building
containing such Unit (to the extent part of the Common Elements). Coverage shall include
permanently installed improvements and betterments that are normally including in coverage,
including, without limitation, fixtures, buildings service equipment, and common personal
property and supplies belonging to the Owner. Such policy may be subject to a reasonable
deductible if approved by the Trustees, such approval not to be unreasonably withheld or
delayed.
Upon request of the Trust, the Unit Owner of each of the Units shall provide the Trust with
certificates of insurance evidencing that the foregoing insurance is in force and effect.
The hazard insurance policy for each such Unit shall include all the Required Coverages and
Special Endorsements provided for as to the Master Policy in this Section 5.6, to the extent same
or reasonably equivalent coverages and endorsements are available to each such Unit Owner).
Each such policy shall cover one hundred percent (100%) of the current replacement cost of each
such Unit and any part or portion of the Common Elements provided for above in this Section
5.6 as being the responsibility of the Owner of each such Unit; provided, however, that such
policy need not include land, foundations, excavations or other items that are usually excluded
from insurance coverage.
The named insured under each such policy shall be the Unit Owner of the subject Unit and the
loss payable clause shall show the Unit Owner and the holder of each mortgage on such Unit.
Each such policy shall also contain the standard mortgagee clause and shall name each
mortgagee, its successors and assigns, that holds a mortgage on such Unit covered under such
policy as a mortgagee. Each such policy shall require the insurer to notify in writing the Unit
Owner, the Trust or Insurance Trustee, and each first mortgage holder named in the mortgagee
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clause at least thirty (30) days before it cancels or substantially changes the coverage under such
policy.
The Trustees shall have the right (but not the obligation), at any time and from time to time, to (i)
request certificates of insurance from the owners of each of the Units confirming that each such
Unit Owner is maintaining such hazard insurance coverage in compliance with the foregoing
requirements, in which case the applicable Owner shall arrange for delivery to the Trust of same
in or within five (5) business days of such request; and (ii) if the Owner of either such Unit fails
to comply with such request (or if it otherwise comes to the attention of the Trust that such
Owner is not maintaining any and all such insurance in full force and effect and such Owner fails
to cure such non-compliance within five (5) business days of notice from the Trust), to purchase
in the name of and for the account of the applicable owner of such Unit, such insurance and to
assess all premiums and associated costs for any such insurance, together with any costs and
expenses of enforcement of such Owner’s obligations hereunder, including reasonable attorneys’
fees, to the Owner of the applicable Unit. The Unit Owner of each of the Units agrees to comply
in a timely manner with any such request. The Unit Owner of each of the Units shall be subject
to the foregoing rights of the Trust and shall comply in a timely manner with any such request or
notice given by the Trust hereunder.
Section 5.7 Repair or Reconstruction After Fire or Other Casualty; Eminent Domain.
Section 5.7.1 Repair or Reconstruction After Casualty. In the event of damage to or
destruction of the Common Elements of the Condominium as a result of fire or other casualty
(unless the casualty exceeds ten percent (10%) of the value of the Property prior to the casualty
and seventy-five percent (75%) or more of the Unit Owners do not agree to proceed with the
repair or restoration as provided in the last paragraph of this Section), the Trustees shall promptly
adjust the loss, arrange for the prompt repair or restoration of the same, and disburse the
proceeds of all insurance policies in payment of all costs and expenses actually incurred in
connection with such repair or restoration in appropriate progress payments and with appropriate
retainage. All insurance proceeds paid to the Trustees on account of any casualty shall be
dedicated solely to the repair or restoration of the loss, and any application of said proceeds by
the Trustees on account thereof shall be prior to the application of such proceeds for any other
purpose.
In the event that the total cost of repair or restoration as estimated on the basis of an
independent appraisal, or as determined during the course of repair or restoration exceeds the
total sum of available insurance proceeds, then the Trustees shall assess, levy or charge all
Owners a Common Expense, for so much of the amount estimated to repair or restore the
Common Elements as exceeds the insurance proceeds available therefor.
If there shall have been a repair or restoration pursuant to the foregoing and the amount
of insurance proceeds shall have exceeded the cost of such repair or restoration, then the excess
of such insurance proceeds, if any, shall be added to the Trust’s Common Funds or, at the option
of the Trustees, divided among all the Owners in proportion to their respective Beneficial
Interests; provided, however, that no provision herein shall be deemed to give a Unit Owner or
any other party priority over any rights of the Registered Mortgagee (if any) on such Unit
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Owner’s Unit pursuant to such mortgage in the case of a distribution to such Unit Owner of
insurance proceeds for losses to Common Elements. Mortgagees of Units will be entitled to
priority with respect to any insurance proceeds distributed to their mortgagors.
Notwithstanding the foregoing, if as a result of fire or other casualty the loss exceeds ten
(10%) percent of the value of the Condominium prior to the casualty, and
(a) If seventy-five percent (75%) in interest of the Owners do not agree within one
hundred twenty (120) days after the date of the casualty to proceed with repair or
restoration, the Condominium shall be subject to partition at the suit of any Unit
Owner. Such suit shall be subject to dismissal at any time prior to entry of an
order to sell if an appropriate agreement to rebuild is filed. The net proceeds of
the partition sale together with any Common Funds shall be divided in proportion
to the Owners’ respective Beneficial Interests, but, to the extent permitted by law,
shall be paid first to the holder of any mortgage. Upon such sale of the
Condominium, it shall be deemed removed from the provisions of Chapter 183A.
(b) If seventy-five percent (75%) in interest of the Owners agree to proceed with the
necessary repair or restoration, the cost of the rebuilding of the Condominium in
excess of any available Common Funds including the proceeds of any insurance,
shall be a Common Expense, provided, however, that if such excess cost exceeds
ten percent (10%) of the value of the Condominium prior to the casualty, any Unit
Owner who did not so agree may apply to the Superior Court on such notice to the
Trustees as the Superior Court shall direct, for an order directing the purchase of
his Unit by the Trustees at the fair market value thereof as approved by the
Superior Court. The cost of any such purchase shall be a Common Expense.
Section 5.7.2 Eminent Domain.
If more than ten percent (10%) of the Condominium is taken under any power of eminent
domain, the taking shall be treated as a “casualty loss”, and the provisions of Section 17 of
Chapter 183A of Massachusetts General Laws shall apply. Where one or more Units have been
substantially altered or rendered uninhabitable as a result of a partial taking, and the Owners vote
to restore and continue the Condominium pursuant to the provisions of Section 17 of said
Chapter 183A, the Trustees shall have the authority to acquire the remaining portions of such
Units, for such price as the Trustees shall determine, provided that any Unit Owner of such
remaining portion who does not agree with such determination may apply to the Superior Court,
on such notice to the Trustees as the Court shall direct, for an order directing the purchase of
such remaining portion at the fair market value thereof as approved by the Court. Where as a
result of a partial taking any Unit is decreased in size or where the number of Units is decreased
by a partial taking, then the Trustees may make such provision for realignment of the Undivided
Interests in the Common Elements as shall be just and equitable.
In the event of a total or partial taking under the powers of eminent domain, the Owners
shall be represented by the Condominium acting through the Trustees. In the event of a partial
taking the award shall be allocated among the affected Units according to their appurtenant
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Beneficial Interest, and paid first, to the extent permitted by law, to the holder (s) of the first
mortgage of such Unit(s), if any, up to, but not in excess of, the then principal balance secured
thereby and any accrued interest and other charges then due the Registered Mortgagee. In the
case of a total taking of all Units and the Common Elements, the entire award shall be payable to
the Trustees to be allocated among the Owners according to their appurtenant Beneficial Interest,
and paid first to the extent permitted by law, to the Registered Mortgagees of such Unit(s), if
any, up to, but not in excess of, the then principal balance secured thereby and any accrued
interest and other charges then due the holder(s) of the first mortgage. As to any portion or
portions of any award which are attributable to direct or consequential damages suffered by
particular Units, they shall be payable to the Unit Owners of such particular Units and their
mortgagees, as their interests may appear.
Section 5.8 Maintenance and Repairs.
Section 5.8.1 Units. Except as provided in Section 5.7 above, all maintenance and
replacement of and repairs to any Unit (and/or exclusive use areas for which a particular Unit
Owner is responsible) shall be done by the Unit Owner at the Unit Owner’s expense. If the
Trustees shall at any time in their reasonable judgment determine that the interior of any Unit
(and/or exclusive use areas for which a particular Unit Owner is responsible) is in such need of
maintenance or repair that the market value or reasonable enjoyment of one or more other Units
is being adversely affected or that the condition of a Unit or fixtures, furnishings, facility or
equipment therein is hazardous to any Unit or the occupants, the Trustees shall in writing request
the Unit Owner to perform the needed maintenance, repair or replacement or to correct the
hazardous condition, and in case such work shall not have been commenced within fifteen (15)
days (or such reasonable shorter period in case of emergency as the Trustees shall determine) of
such request and thereafter diligently brought to completion, the Trustees shall be entitled to
have the work performed for the account of the Owner(s) of such Unit and to enter upon and
have access to such Unit for that purpose. The reasonable cost of such work shall constitute a
lien upon such Unit and the Owner(s) of such Unit shall be personally liable therefor.
Section 5.8.2 Common Elements. Except for certain maintenance, repairs and
replacement required to be performed by Unit Owners, as set forth in Section 5.1 all
maintenance, repairs and replacements to the Common Elements shall be done by the Trustees,
which may be done through a managing agent, as hereinafter provided, and shall be charged to
all the Owners as a Common Expense, reserving to the Trustees the right to recover all or part of
the costs of such work from a Owner (and, to the extent allowed by law, to have and enforce a
lien on such Owner’s Unit for such costs) if such work was necessitated by the negligence,
misuse or neglect of such Owner or any guest, invitee, agent, servant or employee of such Owner
or occupant.
The Trustees and their agents shall have access to each Unit from time to time during
reasonable hours for the maintenance, repair or replacement of any of the Common Elements
therein or accessible therefrom or for making emergency repairs therein necessary, in the
Trustee’s sole judgment, to prevent damage to the Common Elements or to another Unit or
Units.
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Section 5.8.3 No Work shall Jeopardize Building. No work which would jeopardize the
soundness or safety of the building shall be done in a Unit or in the Common Elements unless in
every such case the unanimous written consent of all Unit Owners of the Condominium is first
obtained.
Section 5.9 Improvements
Section 5.9.1 Improvements to Common Elements. Improvements to the Common
Elements may be proposed by the Trustees or requested in writing by the Owners holding
twenty-five (25%) percent or more of the beneficial interest in this Trust. The Trustees shall
submit to all Owners (a) a form of agreement (which may be in several counterparts) specifying
the improvement or improvements proposed to be made and the estimated cost thereof, and
authorizing the Trustees to proceed to make the same, and (b) a copy of the provisions of Section
18 of Chapter 183A. Upon the receipt by the Trustees of such agreement signed by the Owners:
(a) If fifty percent (50%) or more but less than seventy-five (75%) in interest of the
Owners agree to make an improvement to the Common Elements the cost of such
improvement shall be borne solely by the Owners so agreeing.
(b) If seventy-five percent (75%) or more in interest of the Owners agree to make an
improvement to the Common Elements, the cost thereof shall be assessed to all
Owners as a Common Expense, but if such improvement shall cost in excess of
ten percent (10%) of the then value of the Condominium, any Owner not so
agreeing may apply to the Superior Court, on such notice to the Trustees as the
Court shall direct, for an order directing the purchase of his or her Unit by the
Trustees at the fair market value thereof as approved by the Court. The cost of
any such purchase shall be a Common Expense.
Section 5.9.2 Improvements by Unit Owners. No Unit Owner shall make any addition,
alteration or improvement in or to his Unit which may affect the structure or mechanical systems
of the Condominium without the prior unanimous written consent thereto of all of the Trustees,
which consent shall not be unreasonably withheld but may contain such conditions as they deem
appropriate including without limitation restrictions in the manner of performing such work and
requirements for builder’s risk and liability insurance.
All additions, alterations or improvements to any Unit (whether or not affecting the
structural or mechanical systems of the Condominium) shall be performed in compliance with all
applicable laws, regulations, codes, and when required thereby, by licensed contractors, and in
such manner as not to unduly inconvenience or disturb the occupants of the Condominium.
The provisions of this Section 5.9.2 shall not apply to Units owned by the Declarant prior
to the initial sale thereof.
Section 5.10 Exclusive Use of Common Elements. Subject to the reserved right(s) of the
Declarant to do so as set forth in the Master Deed, the Trustees may authorize that exclusive use
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of one or more Common Elements be assigned to one or more Units for such time and on such
conditions as the Trustees may determine, which conditions may, without limitation, include a
requirement that the Unit Owner(s) so benefitted pay, as additional common expenses, such costs
of said Common Elements as the Trustees from time to time may determine. Unless otherwise
provided in a writing signed by a majority of the Trustees and recorded with the Registry, such
rights of exclusive use of Common Elements shall be personal to the Unit Owner(s) to whom
granted and shall terminate when such Unit Owner(s) no longer own the Units so benefitted.
Section 5.11 Right of Access. A Unit Owner shall grant access to his Unit to the Trustees,
at reasonable times and after written notice and an opportunity to cure (except in emergencies),
for the purpose of correcting any conditions originating in his Unit and threatening the health,
comfort, convenience or safety of the occupants of another Unit or the use and enjoyment of the
Common Elements. In case of an emergency such right of entry shall be immediate, whether the
Unit Owner is present at the time or not. In the event of the exercise of the right of access
provided in this Section 5.11, any costs for repairs shall be borne in accordance with the
provisions of Section 5.8 above.
Section 5.12 Mediation of Disputed Trustee Action. Notwithstanding anything in
Sections 5.8 and 5.11, in the event that any Unit Owner(s), by written notice to the Trustees,
shall dissent from any determination of the Trustees with respect to the value of the
Condominium or any other determination or action of the Trustees under said sections, or there
shall be a dispute between or among the Trustees and such dispute shall not be resolved within
thirty (30) days after such notice, then either the Trustees or the dissenting Unit Owner(s) shall
submit the matter to mediation. For that purpose, the mediation shall be undertaken by a
mediator selected by________________________. Any such mediation shall be conducted in
accordance with the applicable procedures and rules for such resolution in the Commonwealth of
Massachusetts.
Section 5.13 Administrative Rules and Regulations. The Trustees may from time to time
adopt, amend and rescind such administrative rules and regulations and such restrictions on and
requirements respecting the use and maintenance of the Units and the use of the Common
Elements as are consistent with the Master Deed and are designed to prevent unreasonable
interference with the use by the Unit Owners of their Units and of the Common Elements.
Section 5.14 Managing Agent. The Trustees may, at their discretion, appoint a manager
or managing agent to administer the management and operation of the Condominium, including
the incurring of expenses, the making of disbursements and the keeping of accounts, as the
Trustees shall from time to time determine. The Trustees or such manager or managing agent
may appoint, employ and remove such additional agents, attorneys, accountants or employees as
the Trustees shall determine.
ARTICLE VI
Sales and Mortgages of Units
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Section 6.1 No Severance of Ownership. No Owner shall execute any deed, mortgage, or
other instrument conveying or mortgaging title to his Unit without including therein the
Beneficial Interest of such Owner in the Common Elements and assets of the Association, it
being the intention hereof to prevent any severance of such combined ownership. Any such
deed, mortgage, or other instrument purporting to affect one or more of such interests, without
including all such interests, shall be deemed and taken to include the interest or interests so
omitted, even though the latter shall not be expressly mentioned or described therein. No part of
the Beneficial Interests of any Unit may be sold, transferred or otherwise disposed of, except as
part of a sale, transfer or other disposition of the Unit to which such interests are appurtenant.
Section 6.2 Mortgage of Units. Any Owner may, without the prior written approval of the
Trustees, mortgage his Unit to any person, firm or entity. An Owner who mortgages his Unit
shall notify the Trustees of the name and address of his mortgagee and shall file a conformed
copy of the mortgage with the Trustees; the Trustees shall maintain such information in a book
or record entitled “Mortgages of Units.” The failure of an Owner to so notify the Trustees or to
file a conformed copy with them shall not invalidate the mortgage or any of its provisions of the
rights of any holder of such mortgage. The Trustees, whenever so requested in writing by a
Registered Mortgagee, shall promptly report any then unpaid Common Charges due from, or any
other default by, the owner of the mortgaged Unit. In addition, the Trustees shall give prompt
written notice to Registered Mortgagee of any default in the performance by the Owner of the
mortgaged Unit of any obligation under the Master Deed, this Trust, or the Rules and
Regulations which is not cured within sixty (60) days. The Trustees, when giving notice to an
Owner of a default in paying Common Charges or other default, shall send a copy of such notice
to each Registered Mortgagee. Each Registered Mortgagee shall be permitted to examine the
books of account of any managing agent or manager relating to the Condominium at reasonable
times of business days, and upon request the Trustees shall furnish each such Registered
Mortgagee with annual reports of the Association and other financial data.
If a Registered Mortgagee gives written notice to the Trustees that there is a default in a
mortgage held by it, or if a Registered Mortgagee gives written notice to the Trustees of an
agreement or covenant by an Owner that said mortgagee is to be a proxy of said Owner, then
such Registered Mortgagee shall be recognized as the proxy of the Owner for all matters
concerning the Condominium until the Registered Mortgagee revokes the same by written notice
to the Trustees, or such mortgage is discharged of record; provided, however, that if such
Registered Mortgagee is not represented at a meeting of Owners, then the Owner may,
notwithstanding the foregoing, cast the vote attributable to his Unit. If two or more mortgagees
of the same Unit give notice to seek to exercise rights hereunder, the mortgagee who in the good
faith determination of the Trustees holds the senior lien shall have the rights granted in this
Section.
ARTICLE VII
Rights and Obligations of
Third Parties Dealing with the Trustees
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Section 7.1 Third Parties; No Duty of Inquiry. No purchaser, mortgagee, lender or other
person dealing with the Trustees as they then appear of record in the Registry shall be bound to
ascertain or inquire further as to the persons who are then Trustees hereunder, or be affected by
any notice, implied or actual, otherwise than by a certificate thereof, and such record or
certificate shall conclusively evidence the persons who are then Trustees. The receipts of the
Trustees, or any one or more of them, for money or things paid or delivered to them or him shall
be effectual discharges therefrom to the person paying or delivering the same and no person from
whom the Trustees, or any one or more of them, shall receive any money, property or other
credit shall be required to see to the application thereof. No purchaser, mortgagee, lender or
other person dealing with the Trustees or with any real or personal property which then is or
formerly was Trust Estate shall be bound to ascertain or inquire as to the existence or occurrence
of any event or purpose in or for which a sale, mortgage, pledge or charge is herein authorized or
directed or otherwise as to the purpose or regularity of any of the acts of the Trustees, or any one
or more of them, purporting to be done in the pursuance of any of the provisions or powers
herein contained, or as to the regularity of the resignation, removal or election of any Trustee,
and any records of the Association purporting to be executed by persons herein required to
execute the same, shall be conclusive evidence in favor of any such purchaser or other person
dealing with the Trustees of the matters therein recited.
Section 7.2 No Recourse to Trustees. No recourse shall be had at any time under or upon
any note, bond, contract, order, instrument, certificate, undertaking, obligation, covenant, or
agreement, whether oral or written, made, issued or executed by the Trustees or by any agent or
employee of the Trustees or by reason of anything done or omitted to be done by or on behalf of
them or any of them, against the Trustees individually, or against any such agent or employee, or
against any beneficiary, either directly or indirectly, by legal or equitable proceedings, or by
virtue of any suit or otherwise, and all persons extending credit to, contracting with or having
any claim against the Trustees, shall look only to the Trust Estate for payment under such
contract or claim, or for the payment of any debt, damage, judgment or decree, or of any money
that may otherwise become due or payable to them from the Trustees, so that neither the Trustees
nor the Owners, present or future, shall be personally liable therefor; provided, however, that
nothing herein contained shall be deemed to limit or impair the liability of Owners under
provisions hereof or under provisions of Chapter 183A.
Section 7.3 All Instruments Subject to Terms Hereof. Every note, bond, contract, order,
instrument, certificate, undertaking, obligation, covenant or agreement, whether oral or written,
made, issued or executed by the Trustees, or by any agent or employee of the Trustees, shall be
deemed to have been entered into subject to the terms, conditions, provisions and restrictions
hereof, whether or not express reference shall have been made to this instrument.
Section 7.4 Recording in Registry. This Declaration of Trust and any amendments hereto
and any certificate herein required to be recorded and any other certificate or paper signed by
said Trustees or any of them which it may be deemed desirable to record shall be recorded with
the Registry and such record shall be deemed conclusive evidence of the contents and
effectiveness thereof according to the tenor thereof; and all persons dealing in any manner
whatsoever with the Trustees, the Trust Estate or any Owners thereunder shall be held to have
notice of any alteration or amendment of this Declaration of Trust, or change of Trustee or
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Trustees, when the same shall be recorded with said Registry. Any certificate executed by any
two Trustees in office at the time (or by one Trustee if there is only one at the time), setting forth
as facts any matters affecting the Trust, as to what action has been taken by the Owners, as to
whether Common Charges are due with respect to a particular Unit and as to matters determining
the authority of the Trustees to do any act, when duly acknowledged and recorded with said
Registry shall be conclusive evidence as to the existence of such alleged facts in favor of all third
persons, including the Trustees, acting in reliance thereon. Any certificate executed by any
Trustee hereunder, or by a majority of the Trustees hereunder setting forth the existence of any
facts, the existence of which is necessary to authorize the execution of any instrument or the
taking of any action by such Trustee or majority, as the case may be, shall, as to all persons
acting in good faith in reliance thereon be conclusive evidence of the truth of the statements
made in such certificate and of the existence of the facts therein set forth and the existence of the
authority of such one or more Trustees to execute and deliver the designated instrument on
behalf of the Trust.
Section 7.5 Application. All present and future owners, mortgagees, lessees and
occupants of Units, and their employees, and any other persons who may use the facilities of the
Property in any manner are subject to the Master Deed, this Declaration of Trust and the Rules
and Regulations. The acceptance of a deed or conveyance or the entering into of a lease or the
act of occupancy of a Unit shall constitute an agreement that the Master Deed, this Declaration
of Trust and the Rules and Regulations, as they may be amended from time to time, are accepted,
ratified, and will be complied with.
ARTICLE VIII
Divided Primary Unit Condominiums
Section 8.1. Divided Primary Unit Condominium Documents. The master deed of any
Divided Primary Unit Condominium shall provide for management and regulation of the Divided
Primary Unit Condominium by a Trust of Individual Unit Owners which shall enact by-laws
pursuant to the Condominium Law consistent with the provisions of the Master Deed and this
Declaration of Trust. Said master deed shall also provide for all other provisions which are
necessary or desirable to carry out the purposes of this Declaration of Trust respecting Divided
Primary Unit Condominiums.
The Declaration of Trust and by-laws of any Divided Primary Unit Condominium shall
provide for a board of trustees of the Divided Primary Unit Condominium Association to
administer the affairs of the Divided Primary Unit Condominium. The by-laws of the Divided
Primary Unit Condominium shall also include a provision authorizing and appointing the
Divided Primary Unit Board on behalf of the Divided Primary Unit to vote or take any other
action to be taken under this Declaration of Trust and By-Laws by or on behalf of the Divided
Primary Unit or the Divided Primary Unit Owner as provided hereunder. The Declaration of
Trust of the Divided Primary Unit Condominium may permit the Divided Primary Unit Board to
employ a managing agent and/or a manager for the Divided Primary Unit Condominium,
provided that such managing agent and/or manager shall be subject to the approval of the
Primary Board, such approval not to be unreasonably withheld. Such by-laws may also contain
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all other provisions, which are necessary or desirable to carry out the purposes of this
Declaration of Trust and By-Laws respecting Divided Primary Unit Condominiums.
The Divided Primary Unit Condominium Documents of a Divided Primary Unit
Condominium are subject to the provisions of the Master Deed, this Declaration of Trust, and the
Rules and Regulations as they may be amended from time to time under the provisions of the
Master Deed and this Declaration of Trust. In the event the Primary Condominium Documents
are amended subsequent to the creation of a Divided Primary Unit Condominium, the Divided
Primary Unit Condominium Documents shall be deemed amended consistent with any such
amendments to the Primary Condominium Documents. The Divided Primary Unit Condominium
Documents shall be null and void and of no force and effect to the extent they are inconsistent
with the Master Deed, these By-Laws or the Rules and Regulations, as they may be amended
from time to time.
The Divided Primary Unit Condominium Documents, and any amendments thereto, shall
not be effective unless approved by the Primary Board; provided, however, that such approval
shall be granted if the Divided Primary Unit Condominium Document in question is consistent
with the provisions of the Primary Condominium Documents. Upon the request of any Primary
Unit Owner seeking to create a Divided Primary Unit Condominium, or any Divided Primary
Unit Board of Trustees seeking to amend any Divided Primary Unit Condominium Document,
the Primary Board shall issue a certificate in recordable form approving said proposed Divided
Primary Unit Condominium Documents, or amendment thereto, provided that the Divided
Primary Unit Condominium Document or Documents in question are consistent with the Primary
Condominium Documents. The execution of any Divided Primary Unit Condominium Document
by the Primary Board of Trustees shall be deemed approval of said Divided Primary Unit
Condominium Document hereunder.
Section 8.2 Authorization of Board of Trustees of Divided Unit Condominium Primary
Unit Condominium. For all purposes of this Declaration of Trust and By-Laws, the Divided
Primary Unit Board of Trustees is hereby authorized and appointed on behalf of the Divided
Primary Unit to vote or take any other action to be taken under these By-Laws by or on behalf of
the Divided Primary unit or the Divided Primary Unit Owner. Any vote or action taken or
authorized by the Divided Primary Unit Board of Trustees shall bind the Divided Primary Unit
as fully as if such vote had been made or action had been taken by the Divided Primary Unit.
Section 8.3 Voting and Other Actions by Divided Primary Unit Owner. Notwithstanding
the provisions of Article IV, a Divided Primary Unit Board may vote and act for the Divided
Primary Unit, and notwithstanding the objections of any Individual Unit Owners such vote or
action shall be given full force and effect (subject, however, to the provisions of this Trust and
such provisions as may be set forth in the by-laws of a Divided Primary Unit Condominium with
respect to the rights of Individual Unit Owners to vote on, and direct the Divided Primary Unit
Board with respect to, (i) repair or restoration in the event of a taking by eminent domain and (ii)
termination or .abandonment of the Primary Condominium regime). For this purpose, any annual
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or special meeting of the Primary Unit Owners may be held jointly with a meeting of the Divided
primary Unit Board; provided, however, that the failure of a quorum of the Divided Primary Unit
Board to be present at any meeting shall not prevent the Primary Unit Owners from transacting
any business properly before them if a quorum of Primary Unit Owners is present.
Section 8.4 Liens and Personal Obligation of Individual Units. Each Owner of any
Individual Unit within a Divided Primary Unit Condominium created in accordance with the
provisions of the Master Deed, by acceptance of an Individual Unit Deed therefor, whether or
not it is so expressed in such deed, shall be deemed to covenant and agree with the Primary
Condominium Association and each other Primary Unit Owner as a personal obligation, to pay
all Common Charges and all other assessments coming due with respect to the Divided Primary
Unit while he is the owner of such Individual Unit, with interest thereon and costs of collection
thereof, to the extent that common charges and other assessments have been assessed against his
Individual Unit by the Divided Primary Unit Board of Trustees , or are deemed to have been
assessed against his Individual Unit. There shall be deemed to have been assessed against each
Individual Unit. a portion of the Common Charges and other assessments assessed against the
Divided Primary Unit by the Primary Board of Trustees equal to the product of (i) said Common
Charges and other assessments and (ii) the percentage of interest of such Individual Unit in the
common areas and facilities of the Divided Primary Unit Condominium, to the extent that all
said Common Charges and other assessments have not been assessed against Individual Units by
the condominium association of the Divided Primary Unit Condominium. No Individual Unit
Owner shall be personally liable for such Common Charges and other assessments assessed
before his acquisition of such Individual Unit or after his disposition of such Individual Unit,
although such Individual Unit shall be subject to a continuing lien in favor of the Primary Unit
Owners enforceable by the Primary Condominium Association on behalf of said Primary Unit
Owners for such portion of all such Common Charges and other assessments (including interest
thereon and the costs of collection thereof) until full payment therefor, which shall bind such
Individual Unit in the hands of the then owner, his heirs, devisees, personal representatives,
successors in title and assigns. An Individual Unit Owner shall continue to be personally liable
after disposition of an Individual Unit for payment and other assessments assessed while the
Individual Unit Owner owned the Individual Unit.
Section 8.5. Subordination of the Lien on Individual Units to Mortgages. The lien of the
assessments provided for in section 5.2 hereof shall, as applicable, be subordinate to the master
deed of any Divided Primary Unit Condominium, and to any first mortgage upon any Individual
Unit subject to assessment; provided, however, that said subordination to any first mortgage on
an Individual Unit shall apply only to the assessments which have become due and payable prior
to a sale or transfer of such Individual Unit pursuant to a foreclosure, or any other proceeding in
lieu of foreclosure. Such sale or transfer shall not relieve such Individual Unit from liability for
any assessments thereafter becoming due, nor from the lien of any such subsequent assessments,
nor shall it relieve the Owner of an individual Unit from personal liability for payment of any
assessments which become due and payable while such an Individual Unit Owner owned the
Individual Unit.
Section 8.6. Insurance Coverage for improvements to individual Units. The by-laws of a
Divided Primary Unit Condominium shall provide that each Individual Unit Owner is
responsible for insuring any additions, alterations or improvements to his Individual Unit which
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may be separately insured by the Individual Unit Owner under a policy of improvements and
betterments insurance. The Divided Primary Unit Board shall not report such additions,
alterations or improvements to the Primary Board in connection with the primary Board's review
of the insurance coverage of the Primary Condominium under Article V, Section 5.6) hereof.
Section 8.7. Notice to Divided Primary Unit Owner. All notices to be given under this
Declaration of Trust to Primary Unit Owners shall in the case of a Divided Primary Unit, be
given to the Divided Primary Unit Board at such address in Yarmouth established
by the Divided Primary Unit Board by notice to the Primary Board.
ARTICLE IX
Miscellaneous
Section 9.1 Records. The Trustees or the managing agent or manager shall keep detailed
records of the actions of the Trustees and financial records and books of account of the Trust,
including a chronological listing of receipts and expenditures, as well as a separate account for
each Unit which, among other things, shall contain the amount of each assessment of Common
Charges against such Unit, the date when due, the amounts paid thereon, and balance remaining
unpaid. An annual financial statement of the Association shall be rendered by the Trustees to all
Owners and all mortgagees requesting same within ninety (90) days after the end of each fiscal
year. Copies of the Master Deed, Rules and Regulations, this Declaration of Trust and floor
plans of the Building and Units, as the same may be amended from time to time, and the records
of the actions of the Trustees and financial records and books of account of the Association shall
be maintained at the office of the Trustees and shall be available for inspection by Owners and
their authorized agents during reasonable business hours.
The Trustees shall, as soon as reasonably possible after the close of each fiscal year, or
more often if convenient to them, submit to the Owners a report of the operations of the Trust for
such year. If the Trustees so determine or if any Owner so requests in writing to the Trustees, the
report shall include financial statements by a certified public accountant which may, but need not
be certified, as the Trustees shall determine, and shall be in such summary form and in only such
detail as the Trustees shall deem proper. Any person who has been furnished with such report
and shall have failed to object thereto by notice in writing to the Trustees given by registered
mail within a period of one (1) month of the date of his or her receipt of the report shall be
deemed to have assented thereto.
Section 9.2 Checks, Notes, Drafts and Other Instruments. Checks, notes, drafts and other
instruments for the payment of money drawn or endorsed in the names of the Trustees or of the
Trust may be signed by any two Trustees (or by one Trustee if there is only one), or by any
person or persons to whom such power may at any time or from time to time have been
delegated by not less than a majority of the Trustees.
Section 9.3 Fiscal Year. Except as from time to time otherwise provided by the Trustees,
the fiscal year of the Association shall end on the last day of December in each year.
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3
Section 9.4 Severability. The invalidity of any part of this Declaration of Trust shall not
impair or affect in any manner the validity, enforceability or effect of the balance of this
Declaration of Trust.
Section 9.5 Captions. The captions herein are inserted only as a matter of convenience
and for reference and in no way define, limit or describe the scope of this Declaration of Trust, or
the intent of any provision thereof.
Section 9.6 Gender. The use of the masculine gender in this Declaration of Trust shall be
deemed to include the feminine gender and the use of the singular shall be deemed to include the
plural, whenever the context so requires. Words used in the singular or in the plural respectively
include individuals, firms, associations, companies (joint stock or otherwise), trusts and
corporations unless a contrary intention is reasonably required by the subject matter or context.
Section 9.7 Interpretation. All the trusts, powers and provisions herein contained shall
take effect and be construed according to the laws of the Commonwealth of Massachusetts.
Unless defined herein or the context otherwise indicates, words defined in Chapter 183A shall
have the same meaning here.
Section 9.8 Waiver. No restriction, condition, obligation, or provisions contained in this
Declaration of Trust shall be deemed to have been abrogated or waived by reason of any failure
to enforce the same, irrespective of the number of violations or breaches thereof which may
occur.
ARTICLE X
Amendments to This Declaration of Trust
Section 10.1 Amendments to This Declaration of Trust. Except as provided in the next
sentence, this Declaration of Trust may be altered, amended or repealed upon the written consent
of the Trustees and Owners representing one hundred (100%) percent or more of the Beneficial
Interest. No amendment which purports to alter the Beneficial Interest of any Unit or the basis
for allocation of Common Expenses, Common Charges or distributions to Owners, shall be of
any force or effect unless the same has been signed by all Owners affected thereby and recorded
in the Registry. For so long as the Declarant has not conveyed every Unit it has the right to
create under the Master Deed, this Declaration of Trust may not be amended so as to adversely
affect the Declarant without Declarant’s written consent.
Any amendment, alteration, addition or change pursuant to the foregoing provisions of
this Section shall become effective upon the recordation with the Registry of an instrument of
amendment, alteration, addition or change as the case may be, signed, sealed and acknowledged
in the manner required in Massachusetts for the acknowledgment of deeds by any two Trustees,
(or one Trustee if there be only one then in office), setting forth in full the amendment, alteration,
addition or change and reciting the consent of the Owners and Declarant required by this Trust to
consent thereto. Such instrument, so executed and recorded, shall be conclusive evidence of the
existence of all facts and of compliance with all prerequisites to the validity of such amendment,
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3
alteration, addition or change whether stated in such instrument or not, upon all questions as to
title or affecting the rights of third persons and for all other purposes. Nothing in this paragraph
shall be construed as making it obligatory upon the Trustees to amend, alter, add to or change the
Declaration of Trust upon obtaining the necessary consent as hereinbefore provided.
ARTICLE XI
Conflicts
Section 11.1 Conflicts. This Declaration of Trust is set forth in compliance with the
requirements of Chapter 183A. In case any provision of this Declaration of Trust conflicts with
the provisions of said statute, or the Master Deed, the provisions of said statute or the Master
Deed, as the case may be, shall control.
ARTICLE XII
Termination
Section 12.1 Termination. The Association hereby created shall terminate only upon the
removal of the Condominium from the provisions of said Chapter 183A in accordance with the
procedure therefor set forth in Section 19 of said Chapter. The Owners may remove all or a
portion of the Condominium from the operation of Chapter 183A of the General Laws as
amended from time to time at any annual or special meeting of the Owners by the affirmative
vote of one hundred (100%) percent in interest of the Owners, provided that notice of such
removal is given in the notice of the meeting and, provided, further, that the holders of all first
mortgages consent to such removal by written instruments duly recorded with the Registry.
Section 12.2 Disposition of Trust Property Upon Termination. Upon the termination of
this Trust, the Trustees may, subject to and in accordance with the provisions of Chapter 183A,
sell and convert into money the whole of the Trust property, or any part thereof, and, after paying
or retiring all known liabilities and obligations of the Trustees and providing for indemnity
against any other outstanding liabilities and obligations, shall divide the proceeds thereof among,
and distribute in kind, at valuations made by them which shall be conclusive, all other property
then held by them in trust hereunder, to the Owners according to their respective beneficial
interest stated in this Trust.. In making any sale under this section, the Trustees shall have power
to sell by public auction or private sale or contract and to buy in or rescind or vary any contract
of sale and to resell without being answerable for loss and, for said purposes, to do all things,
including the execution and delivery of instruments, as may by their performance thereof be
shown to be in their judgment necessary or desirable in connection therewith. The powers of
sale and all other powers herein given to the Trustees shall continue as to all property at any time
remaining in their hands or ownership, even though all times herein fixed for distributions of
Trust property may have passed.
[Signatures appear on the following page.]
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3
Executed as an instrument under seal this ___ day of ____________________, 2021.
Wise Living, LLC
By:__________________________
Christopher D. Wise, Its Manager
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3
COMMONWEALTH OF MASSACHUSETTS
________ County, ss.
On this ___ day of _________________, 2021, before me, the undersigned notary public,
personally appeared the above-named Christopher D. Wise, proved to me through satisfactory
evidence of identification, being (check whichever applies): __ driver’s license or other state or
federal governmental document bearing a photographic image, __ oath or affirmation of a
credible witness known to me who knows the above signatory, or __ my own personal
knowledge of the identity of the signatory, to be the person whose name is signed above, and
acknowledged the foregoing to be signed by him/her voluntarily for its stated purpose, as the
duly-authorized Manager of Wise Living, LLC .
______________________________________________
(Print Name of Notary Public):_____________________
My Commission Expires:_________________________
Qualified in the Commonwealth of Massachusetts
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NOTE: This Document is subject to Revisions prior to recording with the
Barnstable County Registry of Deeds
822-834 MAIN STREET CONDOMINIUM
822-834 Main Street (route 28)
Yarmouth, Massachusetts
MASTER DEED
1. Submission to Condominium Status
MacLyn LLC, a Massachusetts limited liability company with a principal place of
business located at 822 Route 28 Main Street, South Yarmouth, Massachusetts 02664
(hereinafter with its successors and assigns called the “Declarant”), being the owner of the land
with the building(s) thereon Yarmouth , Barnstable County, Massachusetts, which land is more
fully described in Section 3 below (the “Land”), by duly executing and recording this Master
Deed, does hereby submit said Land, together with the building and improvements now or
hereafter erected thereon, and all easements, rights and appurtenances belonging thereto
(hereinafter collectively called the “Property”), to the provisions of Chapter 183A of the General
Laws of Massachusetts (as from time to time amended, hereinafter referred to as “Chapter
183A”) and does hereby state that Declarant proposes to create, and does hereby create, with
respect to the Property, a condominium to be governed by and subject to the provisions of
Chapter 183A (the “Primary Condominium”).
2. Name of Condominium
The name of the Condominium shall be the 822-834 Main Street Condominium
(hereinafter sometimes referred to as the “Condominium”).
3. Description of the Land
The Condominium is located on a certain parcel of land on Main Street (Route 28)
Yarmouth, Barnstable County, Massachusetts more particularly described in Exhibit A attached
hereto and made a part hereof, which land is subject to easements, restrictions, and other matters
of record and as noted in Exhibit A.
4. Description of the Building
The Condominium consists of the land described in Exhibit A, on which are situated two
buildings, 822 Main Street (Route 28) containing two floors and a basement and 834 Main Street
(Route 28) containing one floor and no basement as shown on the Plans recorded herewith,
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divided into two (2) primary condominium units, (the “Primary Units”), designated and to be
used as follows:.
The principal materials of each Building are as follows:
822 Main Street:
Residential wings of this building consist of poured concrete fire walls and pre-cast
concrete slabs for second floor and roof construction. The first floor is primarily slab on
grade but there is a small portion of full basement below each residential wing to
accommodate services and utilities. The exterior is largely clad in vinyl siding and
aluminum doors and windows.
The front commercial portion of the building is primarily slab on grade construction with
the exception being the full basement below a portion of the restaurant. Construction type
is a mixture of wood and metal stud interior and exterior walls, roof trusses, and a variety
of siding materials and asphalt roofing.
834 Main Street:
Wood framed building on poured concrete foundation.
Exterior finishes include wood trim, vinyl clad windows, vinyl siding, white cedar
shingle siding, and asphalt roofing.
There are three handicapped accessible ramps and a covered portico for access to the
building.
5. Description of the Units
The Buildings described in Section 4 have been divided into two (2) primary
condominium units (each of which may, at the election of the owner thereof, be subsequently
further submitted to condominium ownership pursuant to a Master Deed recorded pursuant to
M.G.L. c. 183A, as described hereinafter), designated and to be used as follows, as shown on the
Plans:
(a) Unit 1 (the Commercial Primary Unit) comprises the Building numbered and
located at 834 Main Street (the “Primary Unit 1 Building”)
(b) Unit 2 (the Senior Living Primary Unit) comprises the Building numbered and
located at 822 Main Street (the Primary Unit 1 Building”)
The boundaries of the Primary Units are as follows:
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The Primary Units, their respective boundaries and the appurtenances thereof
are as hereinafter delineated.
(a) Primary Unit 1 and Primary Unit 2 each consist of the entirety of the
respective Buildings (834 Main Street as to Unit 1 and 822 Main Street as to
Unit 2). Except as otherwise expressly set forth in this Master Deed, the
boundaries of Primary Units are the outermost exterior surfaces of each of the
Primary Unit building(s) (including, without limitation, the exterior surfaces
of the exterior walls, roof, windows, exterior doors, and foundations, all other
exterior surfaces and features, and all other building elements of each such
Primary Building).
(b) In furtherance and not in limitation of the foregoing, each Primary Unit shall
be deemed to include, without limitation, all foundations, structural
components, girders, beams, supports, exterior walls (including siding and
trim), structural or bearing walls, roofs, roof drains and storm water systems,
rooftop equipment, screening and roof flashing, gutters and downspout drains,
vents, pumps, windows and doors (including frames, glass, jambs, thresholds,
storms, flashing, molding and trim, and including any skylights), decks,
terraces, balconies, porches, patios, interior and exterior steps and landings,
entrance lobbies or vestibules, elevators (including all cabs, shafts, enclosures,
penthouses, cables, hydraulic cylinders and other related equipment), garage
equipment including garage doors, gates, entry systems, and leader drains,
garage entry trench drains and bollards, building perimeter drains, gas and oil
interceptor systems, mailboxes and mail rooms, community rooms, storage
rooms or areas, motors, fans, compressors, signs and signage, fixtures,
facilities, control equipment, utility installations, fire service and post
indicator valves, utility lines, services and equipment (including, without
limitation, water lines and sewer system disposal lines serving solely and
connecting from a Primary Building or Primary Unit to any common septic or
other common on-site sewage disposal system), supply lines, pipes, wires,
conduits, chutes, ducts, flues, heating, cooling, plumbing, electrical and other
apparatus or equipment, spigots, utility meters, furnaces, hot water heaters,
ventilating and air conditioning systems, components and equipment,
condensers, equipment pads or mounts, concrete dumpster pads, pedestals,
utility and other panels, sump pump(s)(if installed), radon vents (if installed),
and fire suppression, telecommunications, security, surveillance, or other
systems of the Primary Building(s) comprising such Primary Unit, including
any of the foregoing located outside the boundaries of such Primary Unit and
serving solely such Primary Unit. Notwithstanding the foregoing, no pipes,
wires, conduits, ducts, flues, shafts, or public utility lines situated within a
Primary Unit or Primary Limited Common Area appurtenant to a Primary
Unit and forming part of any system serving more than one Primary Unit shall
be deemed to be a part of said Primary Unit or said Primary Unit Limited
Common Elements.
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6. Description of the Common Elements
(a) the Land and all lighting (including without limitation, wiring, conduit and
switches thereto) equipment, canopies, decks, trash receptacles, benches and
the like, and other fixtures on the Land which are not located in either of the
Primary Unit Buildings.
(b) to the extent not only connected to and/or serving only one of the Primary
Unit Buildings, the domestic cold water and sewer systems (other than
plumbing fixtures), including, without limitation, incoming utility service, and
equipment for distribution of cold water (including pumps, valves, pressure
reducers and meters); all equipment required for distributing domestic cold
water to an incoming valve into each Primary Unit or Divided Primary Unit;
all storm and sanitary sewer equipment (including, without limitation, vent
lines, ejectors and pumps, interceptors, filters and valves) and the sewage
holding tanks, and metering devices system (to the extent that any, or all, of
same shall be installed or constructed);
(c) all other installations which are used by more than one Primary Unit;
(d) all other portions of the Property designated “Common” on the Plans.
7. Limited Common Areas
Certain Units (Primary and any Divided Primary Units therein created) may have as an
appurtenance thereto the exclusive right and easement to, consonant herewith and subject to the
Rules and Regulations promulgated pursuant to the By-Laws, use the following (sometimes
herein also referred to as the “Exclusive Use Areas” or “Limited Common Areas and Facilities”
or “Limited Common Elements”), as follows:
(a) The courtyard and other open areas surrounding each of Unit 1 and Unit 2 and
the buildings comprising each such Unit as shown on the site plan recorded
herewith
(b) The parking areas as shown on the site plan recorded herewith as designated
for each of Unit 1 and Unit 2
(c) All other areas as shown on the Site plans as designated for the use by either
Unit 1 or Unit 2.
8. Floor Plans and Site Plan
Simultaneously with the recording hereof there has been recorded a plan showing the
location of the Building on the Land (the “Site Plan”), and a set of the floor plans dated ______
of the Buildings entitled “Wise Living at Yarmouth Condominium - 822 Main Street and 834
Main Street, South Yarmouth, MA” and prepared by ERT Architects, showing the layout,
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location, Primary Unit numbers and dimensions of the Primary Units, stating the name of the
Building or that it has no name, and bearing the verified statement of a registered architect
certifying that the plans fully and accurately depict the layout, location, Unit numbers and
dimensions of the Primary Units as built (the “Floor Plans”). The Site Plan consists of one (1)
sheet, and the Floor Plans consist of four (4) sheets. The Site Plan and Floor Plans are
collectively hereinafter referred to as the “Plans
Notwithstanding any other provision of this Master Deed, the Declarant reserves the
right, without the consent of any Primary Unit Owner or any further authority, to amend this
Master Deed by recording revised floor plans of the Building showing the layout, location,
Primary Unit numbers, and dimensions of the Primary Units, stating the name of the Building
and bearing the verified statement of a registered architect, registered professional engineer or
registered land surveyor certifying that the plans fully and accurately depict the layout, location,
Primary Unit numbers and dimensions of the Primary Units as built, for the purpose of showing
the location of various Common Elements and the boundaries of the Primary Units to the extent
the same cannot be shown on the floor plans recorded herewith owing to the status of
construction of the Building on the date hereof.
9. Use of Primary Units and Creation of Divided Primary Unit Condominiums
(a) The Commercial Primary Unit (Unit 1) is to be used for commercial purposes
and/or for such other primary, ancillary and accessory uses as from time to time permitted under
the applicable Yarmouth Zoning Ordinance and decisions issued thereunder;
(b) The Senor Living (Unit 2) is to be used for Senior Living purposes and/or for
such other primary, accessory and ancillary uses as from time to time permitted under the
applicable Yarmouth Zoning Ordinance and decisions issued thereunder
Any Primary Unit Owner may create a separate condominium (a “Divided Primary Unit
Condominium”) within the Primary Condominium, subdividing his Primary Unit into two or
more individual units, each such unit to be a separate unit (“Individual Unit”) within the Divided
Primary Unit Condominium, by subjecting his Primary Unit to another master deed (a “Divided
Primary Unit Condominium Master Deed”). (A Primary Unit which creates a Divided Primary
Unit Condominium as provided herein, is referred to herein as a “Divided Primary Unit”.) Use of
said Individual Units shall be subject to restrictions, rules and regulations contained in or
promulgated pursuant to this Master Deed and the Declaration of Trust recorded herewith, as
well as to those contained in or promulgated pursuant to the Divided Primary Unit Condominium
Master Deed and the Declaration of Trust recorded therewith. If this Master Deed or the
Declaration of Trust recorded herewith are amended after the creation of a Divided Primary Unit
Condominium, the Divided Primary Unit Condominium Master Deed and the Declaration of
Trust and rules and regulations of the condominium trust of the Divided Primary Unit
Condominium shall be deemed amended to the extent inconsistent with this Master Deed or the
Declaration of Trust recorded herewith, as amended.
No consent or approval from any other Primary Unit Owners shall be needed to create a
Divided Primary Unit Condominium and to accomplish the purposes of this subparagraph and in
regard to any and all other documents necessary in connection therewith (nor is any other
approval or consent required in regard to the exercise of the Declarant’s reserved rights as set
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forth in this Master Deed). The Primary Unit Owners shall agree, and the Divided Primary Unit
Condominium Master Deed shall provide, that any and all liens on the Divided Primary Unit
arising by virtue of Section 6 of the Chapter 183A or this Master Deed shall be subordinate to the
Divided Primary Unit Condominium, provided, however, that in the event that any common
charges or other assessments assessed against the Divided Primary Unit by the Primary Board
are not paid when due, the Primary Unit Owners shall have a lien on each Individual Unit
enforceable by the Primary Condominium Association, but only to the extent that the Owner of
an Individual Unit has failed to pay when due any common charges or other assessments
assessed, or deemed to have been assessed (as provided hereinafter), against his Individual Unit
by the condominium trust of the Divided Primary Unit Condominium, which lien shall be
superior to any lien on the Individual Unit arising by virtue of section 6 of the Chapter 183A or
the Divided Primary Unit Condominium Master Deed. There shall be deemed to have been
assessed against each Individual Unit a portion of the common charges and other assessments
assessed against the Divided Primary Unit by the Primary Board equal to the product of (i) said
common charges and other assessments and (ii) the percentage of interest of such Individual Unit
in the common areas and facilities of the Divided Primary Unit Condominium, to the extent that
all said common charges and other assessments have not been assessed against Individual Units
by the condominium association of the Divided Primary Unit Condominium. The Primary Unit
Owners shall also have a lien enforceable by the Primary Condominium Trust on the funds and
accounts of the condominium trust of the Divided Primary Unit Condominium respecting
common charges and other assessments assessed against the Divided Primary Unit by the
Primary Board. In the event a Divided Primary Unit Condominium is created in phases, the
Primary Unit Owners shall join in all amendments to such Divided Primary Unit Condominium
Master Deed and other documents necessary in connection therewith. All mortgages on the
Primary Units are subject and subordinate to the within rights of the Primary Unit Owners to
create Divided Primary Unit Condominiums, and to any Divided Primary Unit Condominium
Master Deed (and all amendments thereto, if a Divided Primary Unit Condominium is created in
phases) and the Divided Primary Unit Condominium created thereby.
The Owners and occupants of each Primary Unit shall have the right within their
respective Primary Units to construct the interior portions and partitions of their Primary Units,
in pursuance of the purposes permitted herein, and in connection therewith, to relocate Common
Elements within their respective Primary Units, provided that any such construction or relocation
(i) shall be consistent with the operation and maintenance of the respective Primary Units as a
first-class facility and (ii) shall neither interfere unreasonably with the use of any other Primary
Unit and rights appurtenant thereto, nor impair the structural integrity or mechanical systems of
the Primary Condominium, nor unreasonably interrupt service to other parts of the Primary
Condominium. After completion of construction of the interior portions of their respective
Primary Units, the owners and tenants of each Primary Unit shall thereafter have the right to
alter, construct and remove walls, floors and ceilings of their respective Primary Units, relocate
Common Elements within their respective Primary Units and make other improvements and
alterations therein, subject to the requirements of clauses (i) and (ii) above. The Owner of the
Primary Units, or a commercial tenant of all or part of such a Unit, may erect, repair and replace
marquees, awnings, signs and other devices, structures and displays which serve to identify the
name and/or business (collectively “Signage”) of such Unit or tenant and which are reasonably in
keeping with the image of the Building, All such Signage must be in compliance with all City of
Boston, and other applicable Signage and Zoning requirements, in effect from time to time,
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including, without limitation, obtaining all applicable approvals and permits, Except for such
Signage in existence as of the date of the creation of this Condominium (or modifications of
same undertaken by the Declarant), all subsequent alternations of such pre-existing Signage ad
any new Signage shall, in addition to the above requirements, be subject to first obtaining written
approval from the Condominium Trust.
The architectural integrity of the features of any Building visible from the exterior of the
Building and/or from the hallways included within the Common Elements shall, except as set
forth above, be preserved without modification, and to that end no addition, structure, projection,
painting, decoration or other feature shall be erected or placed upon or attached to the Common
Elements, or any part thereof or the interior surface of any window so as to be visible from the
exterior of the Building or from the hallways included within the Common Elements thereof,
except with the prior written consent of the Board of Trustees of the Primary Condominium:
provided, however, that the provisions of this subparagraph shall not restrict the right of a
Divided Primary Unit Owner or any Owner of an Individual Unit within any Divided Primary
Unit Condominium to decorate or improve the interior of his Individual Unit as he may desire,
subject to the requirements of the this Master Deed and the Declaration of Trust recorded
herewith, nor limit the rights herein reserved to the Declarant or its successors or assigns.
Except as to any area set aside and designated by the Board of Trustees, smoking shall be
prohibited within all Units and within the Building and grounds comprising the Condominium,
including but not limited to, in the individual Units, in all Building, in and upon all balconies
whether open or closed, indoor Exclusive Use Areas, within the parking garage and all
Condominium grounds meaning and intending to prohibit smoking anywhere on the Property
including, without limitation, the Units, Common Areas and Facilities and Limited Common
Areas and Facilities. No Unit Owner shall smoke, or permit smoking by any occupant, agent,
tenant, invitee, guest, friend, or family member anywhere in or upon the Property including, but
not limited to, Units, Common Areas and Facilities and Limited Common Areas and Facilities.
Smoking shall include the inhaling, exhaling, breathing, carrying, or possession of any lighted
cigarette, cigar, pipe, other product containing any amount of tobacco, or other heated or lit
product. While this restriction is intended to render the Property smoke free, the Board of
Trustees is not a guarantor of a smoke-free environment hereunder. The Board of Trustees shall
have the right, but not the obligation, to enforce this restriction if the Board determines, in its
discretion, that it is appropriate to do so in any individual case or circumstance. If the Board of
Trustees determines to take any such action, then in addition to its other rights and remedies
under the constituent documents of the Condominium, at law, and in equity, the Board of
Trustees shall be entitled to recover its costs and expenses, including all attorneys’ fees and court
costs, incurred in enforcing this restriction.
If the Board of Trustees determines, in its discretion and for any reason, not to pursue
enforcement of this restriction in any individual case or circumstance, any Unit Owner may bring
his or her own separate action to enforce this restriction against any other Unit Owner who
violates (or whose unit occupant, agent, tenant, invitee, licensee, guest, friend, or family member
violates) this provision. If a Unit Owner who brings such an action succeeds in establishing that
the other Unit Owner has violated this restriction, the Unit Owner bringing such action shall be
entitled to recover his or her costs and expenses, including reasonable attorneys’ fees and court
costs, incurred in such action from the other Unit Owner.
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No Unit Owner, occupant, agent, tenant, invitee, licensee, guest, friend, family member
or other person shall be entitled to recover from the Board of Trustees any attorneys’ fees, court
costs, or other costs or expenses, incurred in any action brought by, or against, the Board of
Trustees under or pursuant to this restriction, including, without limitation, any action to enforce
this restriction or any action for failure to enforce this restriction, regardless of whether any such
Unit Owner, occupant, agent, tenant, invitee, licensee, guest, friend, family member or other
person prevails in such action.
No Primary Unit Owner shall cause or permit to exist in his Primary Unit, nor shall he
cause or permit any occupant of his Primary Unit or invitee to cause anywhere in or about the
Property, any nuisance, any offensive noise, odor or fumes or any hazard to health.
10. Amendment of Master Deed
Except as otherwise provided by law, or elsewhere in this Master Deed, this Master Deed
may not be amended unless the proposed amendment is approved by the vote of no less than
seventy-five (75%) beneficial interest of the Primary Unit Owners, provided however there may
be not amendment in anyway adversely affecting a particular Primary Unit or a particular
Primary Unit appurtenant or exclusive rights unless the owner of such Unit shall join in or
consent to such amendment.
Notwithstanding the above, if the Declarant determines that a typographical error,
misnomer, inadvertent omission or any other error has been made in this Master Deed, the
Declarant, without further authority, shall have the right to correct any such error by an
instrument amending the Master Deed and recorded with said Deeds, provided however that no
such amendment shall materially affect any substantive right or interest of any Primary Unit
Owner in his Primary Unit or the Common Elements.
11. Organization of Primary Unit Owners
A Trust through which the Unit Owners will manage and regulate the Condominium has
been established under the name of be the 822-834 Main Street Condominium Trust under a
Declaration of Trust to be recorded herewith (hereinafter sometimes referred to as the “Trust”).
All Unit Owners are cestuis que trustent (beneficiaries) of said Trust in proportion to their
respective Beneficial Interests. The name and address of the original trustee thereof is as
follows:
Wise Living, LLC
935 Main Street
Chatham, MA 02633
The trustee(s) of the Trust are hereinafter (collectively, if more than one) referred to as
the “Trustees”, which term shall include their successors in trust.
The terms of said Declaration of Trust have been enacted as, and comprise the By-Laws
of the Trust provided for in Chapter 183A.
12. Determination of Percentage Interest in Common Elements
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The Unit Owners shall have an Undivided Interest in the Common Areas and Facilities in
the percentages as specified in Exhibit B. From and after the addition to the Condominium of
any subsequent Building or Phase or Sub-Phase containing additional Units (the “Additional
Units”) pursuant to the provisions of this Master Deed, the Beneficial Interest to which the Phase
1 Units (and Units added by way of previously recorded Phasing Amendments) is entitled shall
be reduced accordingly and the Beneficial Interest to which the original Units and all additional
Units subsequently included herein shall be determined upon the basis of the approximate
relation that the fair value of each Unit bears to the aggregate fair value of all Units.
The percentage figures so determined shall be rounded by the Declarant to the
least extent, if any, necessary as determined by Declarant in its sole discretion, to obtain a 100.00
percent total for all Units. The Beneficial Interest so determined shall be set forth in the
Amendment to the Master Deed by which the additional Unit or Units resulting in such change
of Beneficial Interest is added to the Condominium. Each Unit Owner and mortgagee, by
acceptance of a Unit Deed or mortgage, shall be deemed to have consented to the foregoing
changes in percentage interests and to the rights reserved to the Declarant under this Master
Deed and in the Declaration of Condominium Trust. Solely for purposes of calculating common
and special assessments, said charges may be rounded to the nearest dollar but calculated using
said percentage interest.
Each Unit Owner may use the common areas and facilities in accordance with
their intended purposes without being deemed thereby to be hindering or encroaching upon the
lawful rights of the other unit owners, as provided in Section 5(d) of Chapter 183A. In addition
to all provisions of Section 5(d) of Chapter 183A, the use of said common areas and facilities
shall be subject to the terms and provisions of this Master Deed, the Declaration of Trust, the By-
Laws and the Rules and Regulations, including the provisions herein relating to Exclusive Use
Areas.
13. Encroachments
If any portion of the Common Elements now encroaches upon any Primary Unit or
Individual Unit, if any or if any Primary Unit or Individual Unit now encroaches upon any other
Primary Unit or Individual Unit or upon any portion of the Common Elements, or if any such
encroachment shall occur hereafter as a result of (a) settling of the Building, or (b) alteration or
repair to the Common Elements made in accordance with this Master Deed, or (c) as a result of
repair or restoration of the Building or of any Primary Units or Individual Units after damage by
fire or other casualty, or (d) as a result of condemnation or eminent domain proceedings, a valid
easement shall exist for such encroachment and for the maintenance of the same to the extent of
and for the duration of such encroachment.
14. Common Elements Located Inside of Primary Units and exclusive use areas
Each Primary Unit Owner and Individual Unit Owner, if any, shall have an easement in
common with the Owners of all other Primary Units and Individual Units to use all pipes, wires,
ducts, flues, cables, conduits, public utility lines and other Common Elements located in any of
the other Primary Units and Individual Units and/or such Units’ appurtenant or exclusive use
areas and serving his Primary Unit or Individual Unit. Each Primary Unit and Individual Unit, if
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any, shall be subject to an easement in favor of the owners of all other Primary Units and
Individual Units to use the pipes, wires, ducts, flues, cables, conduits, public utility lines and
other Common Elements serving such other Primary Units and Individual Units and located in
such Primary Unit or Individual Unit and/or such Units’ appurtenant or exclusive use areas. The
Primary Board shall have a right of access to each Primary Unit and Individual Unit and/or such
Units’ appurtenant or exclusive use areas to inspect the same, to remove violations therefrom and
to install, maintain, repair, replace and relocate pipes, wires, ducts, flues, cables, conduits, public
utility lines and other Common Elements within or accessible from such Primary Unit or
Individual Unit. Where an emergency fire exit leads to a Primary Unit or Individual Unit, said
Primary Unit or Individual Unit shall be subject to an access easement in favor of the Owners of
the other Primary Units and Individual Units, if any, to reach the Common Elements in the event
of emergency. Any installation, replacement or relocation of Common Elements within a
Primary Unit or Individual Units shall be located above ceiling surfaces, below floor surfaces or
within walls. Except in an emergency, any right of access to a Primary Unit or Individual Unit
granted in this Section 14 shall be exercisable only after reasonable advance notice and with
reason able efforts to minimize interference with use of such Primary Unit or Individual Unit. A
Primary Unit or Individual Unit shall promptly be restored to its prior condition after completion
of any work in the Primary Unit or Individual Unit conducted pursuant to any right of access
granted in this Section 14.
15. Expansion of the Primary Condominium
The Declarant and/or its successors and assigns (and unless explicated excluded from any
Unit Deed, the initial grantee, and all subsequent grantees of each Primary Unit shall be deemed
vested with all of the Declarant’s reserved rights as set forth in this paragraph 15 and paragraph
16 as relate to such grantee’ Primary Unit) reserve the right, within the period of twenty (20)
years from the date this Master Deed is recorded, to expand the Condominium (a) to add, or
phase in, additional Units (Primary and/or Individual Units), Common Elements and/or Limited
Common Elements to the Land, or Building, and additional portions of Building, (b) to created (a
Divided Primary Unit Condominium within any Primary Condominium, (c) to add additional
parking and/or additions to existing building, (d) to add building, and/or Units, and/or Common
Elements and/or Limited Common Elements on the Land, and (e) as part of, or in addition to,
such reserved rights, the right to convert, or change the use designation of any Unit, or further
subdivided portion thereof, from Commercial to Residential, or Residential to Commercial and
to convert or change the designation of any portion of an unsold Unit and Common Elements or
Limited Common Elements from Unit to Common Elements or Common Elements or Limited
Common Elements to Unit. The Declarant and/or its successors and assigns reserve the right to
add the Additional Land, and building and/or Units constructed thereon, but are under no
obligation to do so. Each Unit Owner and Mortgagee, by acceptance of a deed, mortgage or
other instrument, shall thereby irrevocably appoint the Declarant and its successors and assigns
as his or its attorney-in-fact to execute, acknowledge and deliver any and all instruments
necessary to add or convert such additional Units, Common Elements, Limited Common
Elements, building, and/or improvements (or any portion thereof) as is contemplated by this
Section 15 of this Master Deed, recognizing and acknowledging that the power thereby conferred
shall be a power coupled with an interest, and each such Unit Owner, Mortgagee or other party
agrees for himself, his successors and assigns to execute, acknowledge and deliver any and all
instruments which may be requested at any time to confirm the power of attorney so given. Such
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additional improvements may be added in portions, and there is no requirement that any, all or
any particular portion be added and there are no limitations as to what portions may be added.
Portions of the additional improvements may be added, at different times and in any
order. The Declarant and its successors and assigns shall have the right and easement to
construct, erect and install additional Units, Common Elements and Limited Common Elements
as it shall determine to be appropriate or desirable, and Declarant may thereafter exclusively sell,
convey, assign, lease, license, mortgage or otherwise deal with any such Units and Limited
Common Elements as of the sole owner thereof, for its own account and for its sole benefit.
Any later Phase expressly made subject to this Master Deed and part of the
Condominium pursuant to a “Phasing Amendment” (as described below), the Declarant reserves
for the benefit of itself and its successors and assigns exclusive ownership of such Building or
portions of Building, as well as the right to fully construct, develop and finish same. Nothing
contained in this Master Deed or in future Amendments shall be held to limit or restrict said
reserved rights of Declarant for the benefit of itself and its successors and assigns.
Until such time as additional Phases are added to the Condominium by the recording of
“Phasing Amendments” as described herein and below, any building or portions thereof existing
on the Land any other portions of the building shown on the Site Plan shall constitute an interest
in real estate and be exclusively owned by, and shall be the exclusive responsibility of, the
Declarant.
16. Declarant’s Reservation of Rights; Assignment of Declarant’s Rights.
16.1 As stated above and hereinafter, the Declarant also hereby reserves the right in the
future to create and add Units, Common Elements, and Limited Common Elements, in any
subsequent Phasing Amendment, all of which shall be the property of the Declarant until
conveyed or assigned by it. Additional Units, Common Elements, and Limited Common
Elements, all of which shall remain the property of the Declarant until conveyed or assigned by
it.
16.2 The Declarant hereby expressly reserves both the ownership of and the right(s) to
erect, install and establish (now and for twenty (20) years subsequent to the recording of this
Master Deed) any and all wires, conduits and equipment of every type or nature for the provision
of wired or wireless telecommunications and/or internet services, and/or the transmission of
same. Such reserved rights of the Declarant shall include, without limitation, (a) the right to
assign any or all of such rights to others; (b) the right to enter into agreement(s), on an exclusive
or non-exclusive basis, with service providers; (c) the right to enter into leases or license
agreements with service providers or other parties for the installation of transmission facilities
and/or wires, conduits or equipment relating to the foregoing on any portion of the Common
Elements (including, without limitation, any rooftop or wall); and (d) unless prohibited by law,
the right to provide, for profit, such wired or wireless services to Condominium residents. Any
payment, consideration or benefit derived from the foregoing reserved rights shall belong
exclusively to the Declarant.
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16.3 The Declarant, for itself and its successors and assigns, hereby reserves certain
exclusive rights and easements to enter onto and into the Land and building(s) made part of this
Condominium now or in the future, to complete construction of any building thereon, along with
all improvements, utility liens, wires, pipes, conduits, walkways, and drainage lines to service
the Units constructed thereon
16.4 The Declarant expressly reserves for itself and its successors and assigns, and
shall have the right, without the further consent of any Unit Owner or Mortgagee, to amend this
Master Deed so as to include in this Condominium the later Phases thereof, as set forth above
(hereinafter, the “Phasing Amendment(s)”), pursuant to and in accordance with the provisions of
this Section 16. With respect to said later Phases or Sub-Phases:
(a) The Declarant, in such Phasing Amendment, shall have the right, in its
sole discretion, to create Additional Units, as well as the right to create and designate Limited
Common Elements. Upon the recording of such amendment of this Master Deed so as to include
said later Phases or Sub-Phases, the Units in such Phase or Sub-Phase shall be owned by the
Declarant and shall thereupon be subject to common area charges, and the Common Elements of
this Condominium shall include, except as otherwise provided in said Phasing Amendment, the
same elements, features, and facilities of the building and grounds which are described, defined,
and referred to in this Master Deed as Common Elements.
(b) Except as otherwise provided herein, if the Declarant has not so amended
this Master Deed so as to include any or all of said later Phases or Sub-Phases in the
Condominium within twenty (20) years after the date of recording of this Master Deed, then the
foregoing reserved rights shall terminate and be of no effect with respect to the Additional Land
and any such later Phases not yet created.
(c) Nothing herein shall be deemed to obligate the Declarant to include or to
create any later Phases or Sub-Phases.
(d) Any such amendment creating a later Phase or Sub-Phase shall contain
with respect to such Phase or Sub-Phase all the particulars required by Chapter 183A, as
currently existing or amended. Without limitation of the foregoing, the designation of each Unit
in such Phase or Sub-Phase, a statement of its location, approximate area, and the immediate
common areas to which it has access and its Beneficial Interest in the Common Elements shall be
set forth, respectively in the Phasing Amendment. No such amendment to this Master Deed shall
be effective until it is recorded with the Registry of Deeds.
(e) The Declarant further reserves the right for itself and its successors and
assigns, in its sole discretion, to abandon its intention to create any later Phase or Sub-Phase of
the Condominium, as set forth above, and may, in its discretion, record a statement to said effect
with the Registry of Deeds.
16.5 The Declarant reserves the right for itself and its successors and assigns to
construct the Units in any styles and sizes, so long as those styles and sizes do not violate
applicable zoning ordinances and regulations.
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16.6 In addition to all other rights of Declarant hereunder, Declarant reserves unto
itself and its agents, servants, employees, independent contractors, workmen, work crews,
successors and assigns the right and easement to use, occupy, and alter, for construction
purposes, any and all common areas of the Condominium for all purposes necessary or desirable
in order to construct, develop and complete the Condominium Units and the common areas and
facilities therefor, and for all purposes necessary or desirable in order to construct improvements
to the building and connect same to the Condominium.
Without limiting the generality of the foregoing and in furtherance thereof, the Declarant
hereby reserves unto itself and its agents, servants, employees, independent contractors,
workmen, work crews, successors and assigns, the following rights under this Master Deed: the
right of access, ingress, and egress over and upon the Land, Property and Building(s), and the
Common Elements of the Condominium, including that deemed by the Declarant to be necessary
for marketing purposes and for the work of construction, reconstruction, rehabilitation,
improvement, and other work in progress or contemplated by Declarant, including construction
on abutting Land whether part of the Condominium or not; the right to lay, maintain, repair and
replace, construct, and install and connect (or connect with and make use of) all utilities, utility
lines, poles, tanks, walls, ducts, conduits, roofs, and similar facilities to serve any or all of the
Building and/or Units and the Common Elements and Building, whether part of the
Condominium or not, and all conduits, ducts, plumbing, wiring, and other facilities for the
furnishing of power, gas, light, master antenna, satellite antenna, cable television, water, air and
all sewer and drainage pipes to serve any or all of the Building and/or Units and the Common
Elements and facilities, whether part of the Condominium or not; to pass and repass over all
Common Elements of the Condominium, for all purposes necessary or convenient for the
development and marketing of the Land, Property, Building, including the transportation of
construction materials, equipment, and personnel for the purposes of construction; to construct
improvements on the Land, whether part of the Condominium or not, and to engage in all
activities necessary or appropriate to accomplish the same, including without limitation the
exclusive right to grant to others including any public utility or authority, easements for the
installation and maintenance of utilities; to store construction materials, equipment, and supplies
in those portions of the Common Elements not subject to rights of exclusive use appurtenant to
any Unit; to restrict (for periods of not more than eight (8) hours at any time during any day)
the use by Units Owners of common areas and facilities to facilitate construction or for purposes
of safety (provided, of course, no Unit Owner shall be denied at least one means of access to his
or her Unit during such periods of restriction); to leave debris resulting from construction in the
Common Elements and facilities, provided the same do not endanger safety; to reasonably
interrupt for brief intervals of time, water, gas, electric, and other utilities and service provided
by such utility lines, pipes, tanks, wells, wires, cables, conduits, and septic and drainage lines in
order to facilitate construction or in order to facilitate the installation of appliances or fixtures in
the s, Units or Common Elements and facilities, whether part of the Condominium or not, under
construction, without liability for such interruption of service, provided however that the
Declarant shall use reasonable efforts to minimize any such interruption of service; to park
vehicles used in connection with the construction work or incident thereto in unassigned Parking
Spaces; and, in general, the right to do all things necessary or desirable in order to construct and
complete the Building and/or Units and the Common Elements in connection therewith and to
construct and complete Building(s) and Units, whether part of the Condominium or not.
Declarant further reserves the right to use any Unit owned by the Declarant for storage or as a
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model, for display, as an office, for purposes of facilitating sales or leasing of Units in the
Condominium.
16.7 The rights and easements reserved by the Declarant in this Section 16 shall be in
addition to and not in limitation of, the rights and easements reserved by the Declarant in other
sections of this Master Deed, or in any prior-recorded instrument.
16.8 The rights and easements reserved by the Declarant for itself and its successors
and assigns in this Master Deed shall survive the sale of all of the Units initially established, or
thereafter established by Future Phases or Sub-Phases by the Declarant, and are to be deemed to
be assignable and transferable, in full or in part.
16.9 Each Condominium Trustee, as well as each Owner and Mortgagee of a Unit
within the Condominium, by the acceptance and recordation of a deed or mortgage to a Unit
shall thereby have consented to any such Phasing Amendment(s) to the Master Deed (and
corresponding modification of Beneficial Interests in the Common Elements) and/or the granting
or exercise of any right or easement described in this Master Deed without the necessity of
securing any further consent or execution of any further documents by such Trustee, Unit Owner
or Mortgagee, and hereby appoint Declarant as his, her or its attorney-in-fact to execute,
acknowledge and deliver any and all instruments necessary or appropriate to grant to exercise
any such Phasing Amendment, right or easement described in this Master Deed, or to effect any
such right herein reserved, which power of attorney is deemed to be running with the land,
binding upon heirs, successors and assigns, durable, irrevocable and coupled with an interest.
Each Owner and Mortgagee, by acceptance and recordation of a deed or mortgage, shall thereby
be deemed to have further consented to any governmental permit, approval or zoning relief
sought by the Declarant in connection with the development and construction of the
Condominium and/or such other development and/or construction proposed by Declarant or
Declarant’s affiliates, successors and/or assigns with respect to the Land, and no such Owner or
mortgagee shall object in any way to any such governmental permit, approval or zoning relief
sought by the Declarant. At the request of the Declarant, the Trustees and all Owners shall join
in any application for such governmental permit, approval or zoning relief, provided Declarant
shall bear any costs therefor.
16.10 The Declarant, by deed or by separate assignment, shall be entitled to assign, sell,
grant or mortgage, any and all of its interests, rights and easements owned by it or reserved
herein and in the Trust and By-Laws, at any time, and from time to time, to any mortgage holder,
person, trust, firm, or entity as may be determined by Declarant (and unless explicated excluded
from any Unit Deed, the initial grantee, and all subsequent grantees of each Primary Unit shall be
deemed vested with all of the Declarant’s reserved rights as set forth in this paragraph 16 and
paragraph 15 as relate to such grantee’ Primary Unit). Each Trustee, as well as each Owner and
Mortgagee of a Unit by acceptance and recordation of a deed or mortgage, shall be deemed to
have thereby consented to any such assignment, sale, grant or mortgaging of the Declarant’s said
interests, rights and easements without the necessity of securing any further consent or execution
of any further documents by such Trustee, Owner or Mortgagee, and does hereby appoint the
Declarant as attorney-in-fact to execute, acknowledge and deliver any and all instruments
necessary or appropriate to grant or exercise such assignment, sale, grant or mortgaging, which
power of attorney is deemed to be running with the land, binding upon heirs, successors and
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assigns, durable, irrevocable, and coupled with an interest. The Trustees and Owners, at
Declarant’s request, shall execute whatever confirmatory instruments which Declarant deems
appropriate or necessary in order to perfect, carry out, or effectuate the rights and easements
reserved by the Declarant in this Master Deed and in the Condominium Trust.
17. Primary Units Subject to Master Deed, Unit Deed, By-Laws and Rules and
Regulations
All present and future owners, tenants, visitors, servants and occupants of any Primary
Units shall be subject to, and shall comply with, the provisions of this Master Deed, the deeds of
such Primary Units and Individual Units, the Declaration of Trust and Rules and Regulations of
the Primary Condominium Association, as they may from time to time be amended (collectively
herein referred to as the “Documents”). The acceptance of a deed or the entering into occupancy
of any Primary Unit or Individual Unit shall constitute an agreement that (a) the provisions of the
Documents are accepted and ratified by such owner, tenant, visitor, servant or occupant, and all
of such provisions shall be deemed and taken to be covenants running with the land and shall
bind any person having at any time an interest or estate in such Primary Unit or Individual Unit,
as though such provisions were recited and stipulated at length in each and every deed or lease
thereof, and (b) a violation of the provisions of the Documents by any such person shall be
deemed a substantial violation of the duties of the respective Primary Unit or individual Owner.
18. Right of First Refusal
Except for any sales by the Declarant, no Unit Owner shall sell all or any portion of or
any interest in any Unit, unless (a) the Unit Owner has received a bona fide offer to purchase the
same; (b) the Unit Owner has given the other Unit Owners (which term shall in this provision
include Declarant, or its designated assignee, if an Owner of any Unit, or still retains the right to
still add a Unit to the Condominium) written notice (which shall be deemed to be duly given
when mailed by registered mail) addressed to the Colonial Cove Condominiums address of the
other Unit Owners (and in the case the Declarant to its above address, or to such other address or
addresses as the Declarant shall provide in any amendment to this Master Deed), stating the
name and address of the offeror and the terms and conditions of said bona fide offer and the
encumbrances subject to which the Unit, or any part thereof, are to be conveyed and containing
an offer by the Unit Owner to sell the Unit to other Unit Owners on the same terms and
conditions as said bona fide offer; and (c) the other Unit Owners has not within ten (10) business
days after the giving of such notice, mailed or otherwise given the selling Unit Owner written
notice that such other Unit Owner elects to purchase the same in accordance with said offer. In
the event another Unit Owner elects to purchase, the Unit shall be conveyed by a good and
sufficient Quitclaim Deed conveying a good and clear record and marketable title thereto, free
from all encumbrances except as stated in said bona fide offer and such deed shall be delivered
and the consideration paid at the Barnstable Registry of Deeds on or before the date specified in
the bona fide offer. In the event that the other Unit Owner shall, after giving such notice, fail to
complete such purchase as hereinabove provided, then the selling Unit Owner shall be free
thereafter to sell and convey the Unit or such part thereof covered by the offer to the offeror
named in the selling Unit Owner's notice at a price not lower than that specified therein, but the
selling Unit Owner shall not sell or convey the Unit or any part thereof to any other person or at
any lower price without again offering the same to the other Unit Owners. If the selling Unit
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Owner shall make and record with Barnstable Registry of Deeds an affidavit stating that (1) a
certain conveyance by them is made pursuant to a bona fide offer to purchase; (2) they have
given notice to the other Unit Owners in connection with such conveyance as required by the
provisions of this paragraph; (3) they have not received written notice of election to purchase
given by the other Unit Owners in accordance with the provisions of this paragraph or that the
other Unit Owners who has given notice of election to purchase has failed to complete the same
in accordance with said provisions, as the case may be; and (4) such conveyance is made to the
person named in such notice at a price not lower than that therein stated; then such affidavit shall
be conclusive evidence of compliance with the requirements of this paragraph with respect to
such conveyance in favor of the grantee therein and all persons claiming by, through or under
such Grantee. The provisions hereof shall not be construed to apply to bona fide mortgages to
recognized lending institutions of any Unit, or any part thereof, or to sales or other proceedings
for the foreclosure (or deed in lieu of foreclosure) thereof; or to easements to any municipality or
utility company required for the installation and/or maintenance of drainage, sewage, electric,
gas, water and electric lines and appurtenance to and from the premises.
19. Invalidity
The invalidity of any provision of this Master Deed shall not be deemed to impair or
affect in any manner the validity, enforceability or effect of the remainder of this Master Deed
and, in such event, all of the other provisions of this Master Deed shall continue in full force and
effect as if such invalid provisions had never been included herein.
20. Waiver
No provision contained in this Master Deed shall be deemed to have been abrogated or
waived by reason of any failure to enforce the same, irrespective of the number of violation or
breaches, which may occur.
21. Captions: Context
The captions herein are inserted only as a matter of convenience and for reference, and in
no way define, limit or describe the scope of this Master Deed nor the intent of any provision
hereof.
22. Conflicts
This Master Deed is set forth to comply with the requirements of the Chapter 183A. In
case any of the provisions stated above conflict with the requirements of the Chapter 183A, the
provisions of the Chapter 183A shall control.
[Signatures appears on the following page.]
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EXECUTED as a sealed instrument as of the _________day of ____________, 2021.
MacLyn LLC
By:____________________________
Thomas MacCormick, its Manager
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COMMONWEALTH OF MASSACHUSETTS
________ County, ss.
On this ___ day of _________________, 2021, before me, the undersigned notary public,
personally appeared the above-named Thomas MacCormick, proved to me through satisfactory
evidence of identification, being (check whichever applies): __ driver’s license or other state or
federal governmental document bearing a photographic image, __ oath or affirmation of a
credible witness known to me who knows the above signatory, or __ my own personal
knowledge of the identity of the signatory, to be the person whose name is signed above, and
acknowledged the foregoing to be signed by him/her voluntarily for its stated purpose, as the
duly-authorized Manager of MacLyn LLC.
_________________________________________
(Print Name of Notary Public):______________________
My Commission Expires:_________________________
Qualified in the Commonwealth of Massachusetts
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Exhibit A
(legal description)
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Exhibit A-1
(Easements & encumbrances)
1.
2.
3.
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Exhibit B
(percentage interests)
Unit 1 is located in, and fully comprises the building located at 834 main Street and includes a
total of 4.494 square feet. Unit I has immediate access to the common area and its appurtenant
exterior exclusive use areas.
The owner of the Unit 1 shall be entitled to an undivided 5% interest in the common areas and
facilities of the Condominium.
Unit 2 is located in, and fully comprises the building located at 822 main Street and includes a
total of 107,402 square feet. Unit 2 has immediate access to the common area and its appurtenant
exterior exclusive use areas.
The owner of the Unit 2 shall be entitled to an undivided 95% interest in the common areas and
facilities of the Condominium.