HomeMy WebLinkAbout822-834 Primary Condo DOT 1-13-21draft of January 13, 2021
1
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.
draft of January 13, 2021
2
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.
draft of January 13, 2021
3
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.
draft of January 13, 2021
4
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.
draft of January 13, 2021
5
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.
draft of January 13, 2021
6
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
draft of January 13, 2021
7
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.
draft of January 13, 2021
8
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
draft of January 13, 2021
9
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.
draft of January 13, 2021
1
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
draft of January 13, 2021
1
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;
draft of January 13, 2021
1
(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;
draft of January 13, 2021
1
(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);
draft of January 13, 2021
1
(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
draft of January 13, 2021
1
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,
draft of January 13, 2021
1
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
draft of January 13, 2021
1
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
draft of January 13, 2021
1
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.
draft of January 13, 2021
1
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
draft of January 13, 2021
2
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
draft of January 13, 2021
2
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
draft of January 13, 2021
2
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
draft of January 13, 2021
2
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
draft of January 13, 2021
2
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.
draft of January 13, 2021
2
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
draft of January 13, 2021
2
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
draft of January 13, 2021
2
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
draft of January 13, 2021
2
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
draft of January 13, 2021
2
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
draft of January 13, 2021
3
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
draft of January 13, 2021
3
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
draft of January 13, 2021
3
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.
draft of January 13, 2021
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,
draft of January 13, 2021
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.]
draft of January 13, 2021
3
Executed as an instrument under seal this ___ day of ____________________, 2021.
Wise Living, LLC
By:__________________________
Christopher D. Wise, Its Manager
draft of January 13, 2021
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