HomeMy WebLinkAboutSample Declaration of Trust Willett Way Falmouth 03.28.24RECEIVED Bk 36283 Pg64 #11263
JUL 3 0 2026 03-28-2024 @ 08 : 05a
YARMOUTH
BOARD OF APPEALS
DECLARATION OF TRUST ESTABLISHING THE
WILLETT WAY
HOMEOWNERS ASSOCIATION
1
AGREEMENT and DECLARATION OF TRUST made this,day of
f , 2024, by Habitat for Humanity of Cape Cod, Inc., 411 Main Street,
Suite 6, Yanmouthport, Massachusetts 02675 ("Habitat") as Declarant and Trustee
(hereinafter with their successors in trust referred to as the "Trustees").
(1) Name of Trust. The name of this trust shall be the 071lett Way
Homeowners Association (hereinafter referred to as the "Trust" or the "Association")
(2) Purpose of Trust. The purpose of this Trust is to provide for the
preservation and maintenance for the common enjoyment and benefit of the Homeowners
(as hereinafter defined) of the Common Area and facilities of the development known as
Willett fFay, Falmouth as shown on a plan entitled ("Subdivision" or "Premises" or
"Subject Land") and being shown on a plan entitled "Plan of Land in Falmouth, Mass.
prepared for Habitat for Humanity of Cape Cod, Inc., #0 Barrows Road, Parcel
I.D. #29-05-006-OOOA?. prepared by Bracken Engineering, Inc. dated August 29,
2018 and recorded with said Deeds in Plan Book 677 Page 56 (the "Subdivision Plan' or
"Subdivision" or "Subject Land").
The Subdivision is subject to a Comprehensive Permit issued by the
Falmouth Board of Appeals recorded August 23, 2018 (the "Comprehensive
Permit" or the"Pen-nit"), and recorded with said Deeds in Book 31485 Page 40,
as amended; and to the affordability restrictions and covenants set forth in said
Permit; and to the Declaration of Protective Covenants. Restrictions, Easements,
Rights and Reservations for Willett Way, Falmouth executed November 19. 2018.
and recorded with said Deeds in Book 31690 Page 39 ("Declaration of Protective
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Declaration of Trust
Willett Way, Falmouth
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Covenants"). The Permit and Declaration of Protective Covenants, and the
provisions of each, are explicitly incorporated herein by reference.
Said Subdivision consists of Lots I through 10 (the "Lots") and the common area
and facilities of the Subdivision. The common area and facilities include the following:
(a) a Private Way called Willett Way as shown on the Subdivision Plan ("Willett
Way„)
(b) the open space which is all of the Subject Land outside the boundaries of the Lots
and Willett Way, including without limitation Lot I 1 and the Roadway Lot, the
latter being the island within the cul-de-sac (the "Play Area") as shown on the
Subdivision Plan; and
(c) all other common areas and facilities of the Subdivision, including, without
limitation, the drainage and stormwater management systems; the common
utilities in, under and adjacent to Willett Way to the extent the same are not
maintained by the appropriate utility companies, including without limitation all
conduits, ducts, pipes, plumbing, wiring and other facilities for the furnishing of
power, light, telephone, cable, water, drainage pipes, and lighting fixtures, if any.
(all as hereinafter referenced as the "Common Area" or the "Common Area and
facilities).
The Common Area shall be conveyed by Habitat to the Association. The
Common Area, as defined above, is intended to be and shall be the Trust property. All of
the Homeowners shall have the right to use the Common Area subject to any and all
easements, covenants, conditions, restrictions and reservations pertaining to the
Subdivision and recorded with Barnstable Registry of Deeds and to rules and regulations
as adopted or to be adopted and amended from time to time by the Association.
It is hereby expressly declared that a trust, and not a partnership, has been hereby
created and that the Owners are beneficiaries and not partners or associates or any other
relation whatsoever among themselves with respect to the Trust property and that they
hold no relation to the Trustees other than as such beneficiaries, with only such rights as
are conferred upon them as such beneficiaries hereunder.
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Declaration of Trust
Willett Way, Falmouth
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(3) Beneficiaries. The beneficiaries of this Trust shall be the Homeowners of
Lots 1 through 10 as shown on the Subdivision Plan. Each Lot shall be entitled to one
vote. The words "Owner", "Homeowner" or "Member" shall mean and refer to the
record holder from time to time of the legal title in fee of any of said Lots. Two or more
persons or entities holding record title to the same Lot shall be treated as a single
Homeowner and the exercise of their rights as such owners shall be by their unanimous
action. Their obligations to pay any assessment shall be joint and several.
(4) Homeowners' Annual and Special Meetings. Any action or consent by
the Homeowners shall be taken or given at the annual meeting or at any special meeting
of the Homeowners. The first annual meeting of Homeowners shall be held on the
second Saturday of the second month after the sale of the tenth home. Thereafter, the
annual meeting of Homeowners shall be held on the second Saturday of April of each and
every year (or if that be a legal holiday on the next succeeding Saturday) at the hour and
place to be fixed by the Trustees. If no annual meeting has been held on the date fixed
above, a special meeting in lieu thereof may be held. Special meetings of Homeowners
may be called by the Trustees on their own motion and shall be called by the Trustees
upon written application to the Trustees of at least five (5) Homeowners. Habitat for
Humanity of Cape Cod, Inc. ("Habitat") shall have the right, but not the obligation, to
attend the annual and special meetings for twenty years from and after the date of the first
annual meeting of Homeowners. Habitat shall be a non -voting Member of the Association
and shall participate in the meetings in an advisory capacity only. A written notice of the
place, date and hour of all meetings of Homeowners shall be given by the Trustees at least
fifteen (15) days before the meeting to each Homeowner and to Habitat. Notice need not
be given to a Homeowner or to Habitat if a written waiver of notice, executed before or
after the meeting by such Homeowner or his attorney thereunto authorized, is filed with
the records of the meeting.
(5) V_ odna. Each Homeowner shall be entitled to one vote for each Lot
owned in the Subdivision. Such vote may be cast in person or by proxy. Any instrument
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Declaration of Trust
Willett Way, Falmouth
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dated not more than six months before the meeting purporting to grant authority to
another to cast such vote, duly executed by the Homeowner and acknowledged before a
witness, shall be deemed a proxy. A proxy shall be revocable at any time by written
notice to the Trustees. Upon demand by any Homeowner, the vote on questions before
the meeting shall be by ballot. No Homeowner of a Lot against whom there are any
outstanding and unpaid assessments (as provided herein) shall be entitled to vote at any
regular or special meeting. Habitat will serve in an advisory capacity only and will have
no vote.
(6) Quorum and Votes. At any meeting of the Members of the Association,
the presence in person or by proxy of Members holding a majority of the total number of
votes entitled to be cast ("Qualified Voters") will be necessary to constitute a quorum for
all purposes. The approval of the Members, in person or by proxy, representing at least
two-thirds of the Qualified Voters shall be necessary for affirmative action on any matter
involving expenditures of any sum or money in excess of Five Thousand Dollars
($5,000.00) or for affirmative action on the disposition of property or the imposition of
special assessments for capital improvements. On all other matters, the vote of a majority
of Qualified Voters, in person or by proxy, shall be sufficient. In the event that, at the
time of any legally called meeting, there are fewer than a majority of Qualified Voters
present and those Qualified Voters not attending received written notice pursuant to
Section 4 above and did not send proxies, then a quorum shall be defined as the number
of Qualified Voters attending the meeting and approval of matters listed above that
require a majority vote will require the unanimous vote of the qualified quorum voters.
Likewise, in the event that, at the time of any legally called meeting, there are fewer than
a majority of Members qualified to participate in the quorum or voting due to failure to
pay their assessment, then a quorum shall be defined as the number of Qualified Voters
attending the meeting and approval of matters listed above that require two-thirds will
require the unanimous vote of the Qualified Voters. Other votes will require a majority.
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Declaration of Trust
Willett Way, Falmouth
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(7) Compensation and Expenses. Members shall not receive any
compensation for their services but may be paid for rendering unusual or special services
to the Association or reimbursed for expenses incurred, if the same are approved by a
majority of Members present and entitled to vote at the meeting during which request for
such payment is made.
(8) Notices. All notices to the Homeowners shall be in writing and shall be
sent to the Homeowners or to such one of them as they may designate in writing from
time to time, at the last address of such Homeowner as it appears in the records of the
Trust. Changes in the Homeowners or their addresses shall be noted in the records of the
Trust only upon written notice from the Homeowner filed with the Trustees. Notice shall
be deemed given as of the date of mailing. Notice to Habitat shall be sent to its address at
411 Main Street, Suite 6, Yarmouthport, Massachusetts 02675, Attention: Family
Programs Manager, until such time as the Trust is notified of a change in address.
(9) Powers and Duties of Trustees. For the purpose of carrying out the
terms of this Trust, the Trustees shall have all the powers and duties necessary or
convenient for the administration of the Trust property, including without limitation the
following powers which may be exercised by them without any action or consent by the
Homeowners, except as set forth in this Trust instrument, and which shall continue after
the termination of the Trust for the purpose of disposing of the Trust property and until
final disposition thereof:
(a) preserve, care for and maintain the Common Area and facilities of the
Subdivision;
(b) maintain, repair, improve, change or alter any property, real or personal,
including repairing, replacing, digging, excavating, filling, tearing down, restoring and
rebuilding Willett Way, utility lines, stormwater management systems and other drainage
systems, structures or additions thereto; assume responsibility for snowplowing should
the Town ever discontinue this service for private ways;
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Declaration of Trust
Willett Way, Falmouth
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(c) plant, fertilize, water, mow and maintain the lawn and/or landscape within the
Common Area including the Play Area;
(d) maintain the Play Area for recreation in a manner that is welcoming and safe
for the use of the Association Members and their guests; adopt reasonable rules and
regulations governing its enjoyment; and enforce all said rules and regulations promptly,
properly and uniformly as against all Members and their guests to whom the same may
from time to time apply; and, so failing enforce the same at the request of any Association
Member;
(e) maintain, repair and replace systems and utilities serving the Association and
its Members within the Common Area and to abate any public health nuisance that in the
Trustees' judgment is caused thereby;
(f) operate, maintain, repair and replace any and all portions of the Common Area
and facilities including, without limitation, the stormwater management and drainage
systems, and do all things necessary to manage, operate and maintain, without limitation,
the Common Area and facilities which in the Trustees' judgment is necessary;
(g) make contracts which the Trustees deem convenient to the performance of
their duties as Trustees;
(h) hire and retain a property management services company or organization to
perform some or all of the Trustees' responsibilities, including but not limited to the
collections of assessments, and to include payment for such services in the annual
assessment;
(i) through the property management services company, manage the finances of
the Association, including allocation of income and expenses, and enforce the obligations
of the Homeowners to pay the assessments;
0) working with the property management services company, determine and
collect reasonable fees from the Homeowners, as shall be established by the Association,
including special assessments for capital purposes;
(k) open bank accounts in the name of the Trust or the Trustees with power in two
Trustees to draw on such accounts;
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Declaration of Trust
Willett Way, Falmouth
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(1) acquire by purchase, hire or otherwise, property convenient to the performance
of their functions as Trustees;
(m) borrow money, provided however, that such borrowing has been authorized
by a vote of the Members who are Qualified Voters as defined in Section 6 of this
Declaration at a meeting of the Members of the Association held pursuant to Section 4 of
this Declaration; in the event that there are fewer than two-thirds of Members to
participate in the voting due to failure to pay their assessment, approval to borrow money
will require the unanimous vote of the Qualified Voters attending the Meeting in person
or by proxy.
(n) procure insurance;
(o) enforce the obligations of the Homeowners under the Declaration of
Protective Covenants;
(p) in addition to Schedule A attached to the Declaration of Protective Covenants,
the Rules and Regulations of the Association, adopt reasonable rules and regulations
governing the enjoyment by the Owners of the Trust property, as shall be established by
the Association; the Trustees may, at any time and from time to time, adopt, amend and
rescind reasonable administrative rules and regulations governing the details of the
operation and use of the Common Area and facilities, and such restrictions as are
designed to prevent unreasonable interference with the use by the Owners of their
dwelling units and of the Common Area and facilities; the Trustees shall enforce all said
rules and regulations promptly, properly and uniformly as against all Owners and others
to whom the same may from time to time apply and, so failing shall so enforce the same
at the request of any Owner, all of which obligations shall constitute obligations of theirs
as Trustees hereunder;
(q) to pay, resist, compromise or submit to mediation any claim or matter in
dispute;
(r) convey easements and lesser interests in, upon, over and under Willett Way for
the installation, maintenance, repair and replacement of utilities and other services and
rights incidental thereto;
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Declaration of Trust
Willett Way, Falmouth
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(s) grant or relocate permits, easements and licenses on, over and under the
Common Area and facilities;
(t) convey to the Town of Falmouth or other public body the fee in the Common
Area and facilities of the Subdivision or convey easements to said Town or other public
body in the Common Areas of the Subdivision;
(u) maintain, from time to time, reasonable reserves from income or by
assessment upon the Homeowners for any or all of the following purposes: repairs,
improvements and reconstruction of the Common Area and any other real or personal
property belonging to the Trust, real estate and personal property taxes; interest and
principal payments due or to become due on loans; and invest such reserves and use the
same for such purposes as it shall deem best; and
(v) generally, in all matters not herein otherwise specified, control and do each
and every thing necessary, suitable, convenient, or proper for the accomplishment of any
of the purposes of the Trust or incidental to the powers herein and manage and dispose of
the Trust property as if the Trustees were the absolute owners thereof; and to otherwise
exercise any powers which may be necessary or desirable for carrying out the terms of
this Trust or which the Trustees may have under any present or future statute or rule of
law; and to execute and deliver all appropriate instruments in connection therewith.
(10) Assessments. Each Homeowner or entity except Habitat that takes title to
any Lot shall, upon acceptance of a deed or upon the vesting of title by descent or devise,
be deemed to have agreed to pay to the Association all special or annual assessments,
which assessments may include but are not limited to the following: management,
maintenance, including but not limited to plowing, improvement, preservation,
replacement and restoration of the Common Area or facilities thereof, including but not
limited to Willett Way; real estate taxes on the Common Area; premiums for insurance
on the Common Area; expenses relating to the Trustees' contractual obligations to the
property management services company, and expenses relating to the enforcement of the
covenants, restrictions and provisions set forth in said Declaration of Easements.
(a) The annual assessments provided for herein shall commence on the sale of the
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Declaration of Trust
Willett Way, Falmouth
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tenth Lot of the Subdivision, and shall be payable in equal quarterly installments on the
first day of January, April, July and October. The amount of the first annual assessment
shall be established by Habitat. Additionally, each homeowner shall pay on the date of
delivery of the deed Three Hundred ($300.00) Dollars and the equivalent of three
months' installments of the first annual assessment to be held in escrow by Habitat until
the election of the Trustees at the first annual meeting.
(b) At least fourteen (14) days before the annual meeting, the Trustees shall
estimate and provide to all the Homeowners a budget showing the estimated expenses to
be incurred during such next fiscal year, together with reasonable provisions for the
contingencies and reserves for the performance and fulfillment of all of the duties,
functions and activities of the Trustees which, as determined by said Trustees in their
reasonable discretion, are for the general benefit of all of the Homeowners. Each such
common budget shall include payment to the property management services company for
the services provided the Association. Each such common budget shall be divided into
equal shares, one for each Lot.
(c) Written notice of the annual assessment and quarterly statements
("statements") shall be sent by the property management services company, under the
direction and by the authority vested in the Trustees of the Association, to the then
owners of all ten Lots. Each person or entity except Habitat that takes title to any of these
Lots shall upon acceptance of a deed, or upon the vesting of title by descent or devise, be
deemed to have agreed to pay all assessments in a timely manner. "Timely manner" is
hereby defined as within thirty (30) days from the sending of a written notice of
assessment by the Trustees of the Association. Any assessment not paid within such
thirty -day period shall bear interest thereafter at the rate of one percent (1.0%) per month,
or at the maximum interest rate allowed by law if such maximum allowable rate is less
than 1.0% per month.
(d) In addition to annual assessments, the Trustees may levy in any assessment
year a special assessment, applicable to that year only, for the purpose of providing for
the payment of the costs of construction of, and unexpected repairs or replacement to, a
capital improvement relative to the Common Area of the development, which exceeds the
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Declaration of Trust
Willett Way, Falmouth
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current cash reserves of the Association, provided that any special assessment is
authorized by said Association at a meeting duly called for this purpose pursuant to
Section (6) of this Declaration of Trust, written notice of which shall be sent to all
Homeowners at least fifteen (15) days in advance and shall set forth the purpose of the
meeting. Upon said approval, the Trustees shall direct the property management services
company to include such special assessment in its quarterly statement.
(e) In the event that the Trustees shall determine during any fiscal year that the
common budget so established is less than the expenses actually incurred (including
reserves), or in the reasonable opinion of the Trustees likely to be incurred, the Trustees
shall make a supplemental assessment or assessments and direct the property
management services company to include such supplemental assessment in its quarterly
statement in the manner aforesaid.
(f) The amount of each quarterly statement for regular, special or supplemental
assessments, if not paid when due, shall remain the ongoing obligation of the
Homeowner and shall constitute an ongoing lien on the Lot until paid.
(g) The Association, through the property management services company or the
Trustees, by the power and authority vested in the Trustees, may bring a civil action at
law or in equity against any person or entity for failure to pay any Homeowners
Association assessment within ninety (90) days of the due date of a notice of assessment
by the Trustees of the Association. The prevailing party shall recover reasonable
attorneys' fees, interest, costs and expenses incurred in enforcement.
(h) The amount of each statement for regular, special or supplemental
assessments, together with interest thereon, if not paid when due, together with all costs
and expenses, including attorneys' fees, incurred by the Trustees in any proceeding
brought to collect such unpaid common expenses and assessments, delinquent fees,
charges, penalties and interest charged to a delinquent Homeowner, shall constitute a lien
on the Lot. Such lien shall have priority over all other liens except (a) real estate taxes
and other municipal liens, and (b) a first mortgage on the Lot in question which was
recorded prior to the time the assessment or charge was first levied. Such amount shall
also constitute a personal debt of the Homeowner who is the owner of such Lot on the date
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Declaration of Trust
Willett Way, Falmouth
Page l 1 of 23
of the assessment by the Trustees. The Trustees shall take prompt action to collect any
common expenses and assessments due from any Homeowner that remain unpaid for
more than 90 days from the due date thereof, i.e. 120 days from the I u day of the quarter.
By acceptance of any deed to any of the Lots, the Owner thereof thereby covenants with
the Trust that any assessment by the Trustees for which said Homeowner is liable may be
enforced by selling the Homeowner's Lot, together with any improvements thereon, by
virtue of the STATUTORY POWER OF SALE, pursuant to Massachusetts General
Laws, Chapter 183, §21, as though said Homeowner had granted a mortgage at the time
of such acceptance of said deed to the Trust to secure such assessments as may from time
to time be due to the Trust by said Homeowner. Such lien may also be foreclosed by the
Trustees in like manner as a condominium assessment lien under Massachusetts General
Laws, Chapters 183A and 254.
(i) The Trustees shall furnish, upon demand by any Homeowner, a certificate in
writing signed by any Trustee (other than the Homeowner who demanded the certificate)
attesting that any annual, special and/or supplemental assessment is paid or outstanding.
Any such certificate, if recorded in Barnstable Registry of Deeds within 30 days of its
date, shall be conclusive evidence of the facts stated therein.
(11) Liability of Trustees. All persons extending credit to or contracting with
or having any claim against the Trustees hereunder shall look only to the Trust property
for any such contract or claim, so that neither the Trustees nor the Homeowners shall be
personally liable therefor. No Trustee hereunder shall be liable to this trust or to the
Homeowners for the default of any other Trustee, or for leaving property in the hands of
another Trustee, or for any error of judgment or law on his own part, but shall be liable
only for his own willful default. Any Trustee hereunder shall be reimbursed in full for
any loss or expense incurred or suffered by the Trustee or the estate of the Trustee as a
result of his or her acting as Trustee hereunder, excluding only such loss or expense
resulting from his or her own willful default.
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Declaration of Trust
Willett Way, Falmouth
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(12) Financial Records. The Trustees shall keep proper records and accounts
of the affairs of the Trust, which shall be open to inspection by any Homeowner at
reasonable times. At least once a year the Trustees shall render a written report and
financial statement to the Homeowners. The approval by a majority of the Homeowners
entitled to cast a vote of any report or financial statement by the Trustees shall be, as to
all matters and transactions stated in said report or statement or shown thereby, a
complete discharge of the Trustees and final and binding upon all Homeowners. The
fiscal year of the Association shall be from January I3t to December 3111 of each year.
(13) Property Mana ement Services Company., The Trustees shall hire,
retain, and contract with a property management services company to perform the
following duties and responsibilities of the Trustees:
(a) hold and manage the Association's bank account, collect all annual, special
and supplemental assessments and pay the Association's expenses, all as directed by the
Trustees;
(b) provide the Trustees with a written report and financial statement that
includes an annual summary of assessments paid and expenditures made a minimum of
thirty (30) days before the annual meeting;
(c) prepare an annual budget showing the expenses to be incurred during the next
fiscal year including reasonable provision for contingencies and reserves, and present the
same to the Trustees a minimum of thirty (30) days before the annual meeting;
(d) provide each Homeowner with written notice of the annual assessment to be
due quarterly in four equal payments on the V of January, April, July and October;
(e) provide each Homeowner with quarterly statements of the annual assessment
and include any additional amounts owing due to special or supplemental assessments, as
directed by the Trustees;
(f) send written notice of failure to pay assessments to any Homeowner in arrears
of his, her, or their quarterly payment of the annual, special and supplemental
assessments;
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Declaration of Trust
Willett Way, Falmouth
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(g) bring, or cause to be brought, a civil action in law or in equity against any
Homeowner in arrears of his, her, or their payment of any assessment for more than 90
days from the due date thereof, i.e. 120 days from the 11 day of the quarter;
(i) provide the Trustees with written notice of a Homeowner's failure to pay if
the Homeowner is in arrears of his, her or their quarterly assessment payment after 60
days from the due date thereof; and
0) perform any and all duties and responsibilities directed and contracted by the
Trustees within the rights and duties of the Trustees.
(14) Trustees in Number and Terms. There shall always be three (3)
Trustees hereunder except that prior to the sale of the tenth lot and the first annual
meeting of Homeowners, there shall be one Trustee to be appointed by Habitat. Upon the
sale of the tenth Lot and at the first Annual Meeting of Homeowners, the Homeowners
shall elect the Trustees from among the Homeowners. The Trustees from then on shall be
Homeowners. All Trustees shall serve until their successors have been duly elected and
the position of Trustee accepted. Habitat shall serve in an advisory capacity to the
Trustees for one year following the first annual meeting. Habitat shall have the right, but
not the obligation, to attend Trustees' meetings for twenty years from and after the date
of the first Annual Meeting of Homeowners. Habitat shall be a non -voting Member of the
Association and shall participate in the meetings, in its sole discretion. Except for the
Trustee appointed by Habitat, the tern of each Trustee shall expire at the time fixed
herein for the annual meeting of Homeowners to be held in the second year after the
election of such Trustee, provided that:
(a) the initial term of Trustee No. 1 elected by the Homeowners shall expire at the
time fixed for the annual meeting to be held on or about [3yrs from 1" Annual
Meeting], but not until the election of a successor Trustee and his or her acceptance to so
serve;
(b) the initial term of Trustee No. 2 elected by the Homeowners shall expire at the
time fixed for the annual meeting to be held on or about L2y13 from 1a1 Annual
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Declaration of Trust
Willett Way, Falmouth
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Meetin • but not until the election of a successor Trustee and his or her acceptance to so
serve;
(c) the initial term of Trustee No. 3 elected by the Homeowners shall expire at the
time fixed for the annual meeting to be held on or about [11-yr-from 1" Amusl M ti
but not until the election of a successor Trustee and his or her acceptance to so serve.
(1 S) Election of Trustees. At each annual meeting of Homeowners,
commencing with the annual meeting to be held on or about flyr from 1*1 Annual
MeetinyJ, the Homeowners shall elect one Trustee for a term expiring at the time fixed
for the annual meeting to be held in the second year after such election.
(16) Vacancies. Removals. and Action by Maierity Vote. Any Trustee may
at any time resign as Trustee by a written instrument signed by him or her, acknowledged
and delivered to the remaining Trustees. Upon the death or resignation of any Trustee, a
vacancy in the office of Trustee shall be deemed to exist and a new Trustee shall be
elected for the unexpired term by the remaining Trustees. Any successor Trustee shall
qualify as a Trustee by written acceptance, signed and acknowledged by him or her.
Pending any appointment of a successor Trustee, the remaining Trustee shall have and
may exercise all powers, authorities and discretions conferred by this Trust. After
reasonable notice and opportunity to be heard before the Homeowners at a Special
Meeting of the Homeowners called pursuant to Section 4 herein, any Trustee may be
removed from office by a vote of two-thirds of the Homeowners, excepting Trustee No. 1
appointed by Habitat whose term will cease upon the election of the Trustees at the first
annual meeting of the Homeowners. In the event that, at the time of the Special Meeting
so called, there are fewer than two-thirds of Qualified Voters (due to failure to pay their
assessment), then a Trustee may be removed from office by the majority vote of
Homeowners qualified to vote. Upon the death, resignation, removal or incapacity to act
of any of the Trustees, the title of the Trust property shall vest in the remaining Trustees,
and, upon the filling of any such vacancy, such title shall vest jointly in those who shall
be the Trustees hereunder without further action.
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Declaration of Trust
Willett Way, Falmouth
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In all matters relating to the administration of the Trust hereunder and the exercise
of the powers hereby conferred, the Trustees shall act by majority vote. The Trustees
may so act without a meeting by instrument signed by all Trustees.
(17) Fidelity Bonds and Surety. The Trustees shall attempt to obtain fidelity
bonds in amounts which they deem reasonably sufficient to cover the Trustees when and
if the Trustees are handling or are responsible for funds.
(18) Rights of the Town of Falmouth: The principal duty of the Trustees shall
be to maintain and keep in good repair the Common Area of the Subdivision. The
expenses of all such maintenance, operation, repair and replacement shall be assessed to
the Owners as a common expense. The Town shall have the perpetual right and easement
to enter the Trust property, including the Common Area, for the purpose of inspecting the
same and to ensure compliance with the terms hereof, and to take any measures to abate or
remedy any violation hereof.
In the event repairs, maintenance or replacement of any of the Common Area is
required and the Trustees fail or are unable to take such action within sixty (60) days after
written notice from the Town, the Town may take such actions necessary to have the
work performed, and the expenses thereof shall be chargeable against the Trust and the
Owners, the Trust property and the Lots.
The rights hereby granted to the Town include the right to enforce the obligations
of the Trustees contained herein by appropriate legal proceedings and to obtain injunctive
and other equitable relief against any violation, including, without limitation, relief
requiring repair, maintenance or replacement of any Trust property (it being agreed that
the Town has no adequate remedy at law), and shall be in addition to, and not in
limitation of, any other rights and remedies available to the Town. The Town shall have
the option to enforce said obligations, but does not have the obligation to do so. The
expenses incurred by the Town in abating or remedying any violation hereof and in
enforcing the duty of the Trustees hereunder shall be paid by the Trustees within thirty
(30) days of written notice to the Trustees by the Town and, if not paid by the Trustees
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Declaration of Trust
Willett Way, Falmouth
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within the time allowed, the Town may assess such costs against the Homeowners and
such assessment shall become a lien on those properties which may be collected and
enforced in the manner fixed by law for the collection of taxes. Notice of the lien shall be
recorded in the Barnstable District Registry of Deeds. As an alternative or in addition to
this process, the Town may recover its costs by means of betterment assessments on the
Homeowners. Notwithstanding the foregoing, the Town shall have no obligation to
perform the foregoing maintenance and repairs.
(19) Statement of Purposes and Restrictions on Use. The Lots are
intended for residential use. The Lots and the Common Area of the Subdivision shall
be subject to the following restrictions:
(a) All maintenance and use by Homeowners of all facilities shall be done
so as to preserve the general appearance and character of the same and of the grounds
and buildings;
(b) All use and maintenance of the Lots shall be in accordance with the
provisions of the Rules and Regulations from time to time promulgated by the Trustees
and in accordance with the Declaration of Easements to be recorded herewith;
(c) The Lots, the buildings thereon, and the Common Area shall be used
only for purposes consistent with their design;
(d) Each Homeowner shall use his or her Lot only for such purposes and to
such extent that it will not overload the structure of the building on the Lot or its
foundation or unreasonably overload the capacity of the subsurface sewage disposal
system on the Lot or any utility furnished to the Lot including but not limited to water,
electricity, cable, gas and telephone;
(e) No Homeowner or occupant shall commit, permit or suffer any violation
of any insurance policies taken out by the Trustees, or do, permit or suffer anything to be
done, or keep or permit anything to be kept, or permit any condition to exist which might
(i) result in the termination of such policies, or (ii) adversely affect the right of recovery
hereunder, or (iii) result in reputable companies refusing to provide insurance as required
or permitted by the Trustees, or (iv) result in any increase in the insurance rate or
Bk 36283 Pg80 #11263
Declaration of Trust
Willett Way, Falmouth
Page 17 of 23
premium with respect to any other Homeowner's policy or policies, unless, in the case of
such increase, the Homeowner responsible for such increase shall pay the same.
(f) No unlawful use shall be made within the Common Area or any part
thereof, and all valid laws, orders, rules and regulations of all governmental agencies
having jurisdiction thereof shall be strictly complied with. Compliance with any legal
requirements shall be at the sole cost of the Homeowner or the Trustees as the case may
be, whichever shall have the obligation under this Declaration of Trust to maintain, repair
or control the portion of the property affected by any such legal requirement. Each
Homeowner shall give prompt notice to the Trustees of any notice he or she receives of
the violation of any legal requirements affecting the Homeowner or the Common Area.
(20) Termination by Law. This Trust, unless sooner terminated as herein
provided, shall terminate ninety (90) years from the date hereof.
(21) Termination or Amendment by Consent. Except as specified in Section
20 herein, the provisions hereof may be altered, amended, or repealed at any meeting of
the Association by a vote of two-thirds of the Homeowners represented either in person
or by proxy, provided that the proposed action is inserted in the notice of such meeting.
In the event that, at the time of such Meeting, there are fewer than two-thirds of Qualified
Voters, as defined in Section six herein, attending such Meeting in person or by proxy,
the approval of such amendment, alteration, repeal, addition or change shall require the
unanimous vote of the Qualified Voters attending the meeting. Notwithstanding the
foregoing, no such amendment, alteration, repeal, addition or change that would (a)
render this Trust contrary to or inconsistent with any requirements or provisions of
applicable law or any permit or approval issued by a board or officer of the Town,
including the Comprehensive Permit and any amendments thereto, (b) alter, amend or
revoke the obligations of the Trustees to maintain the Common Area in good order and
condition, or (c) reduce the obligations of the Homeowners to pay common expenses,
shall be valid or effective without the prior written consent of the Town. Further, no
termination of the Trustees' obligation and responsibility to retain the services of a
Bk 36283 Pg81 #11263
Declaration of Trust
Willett Way, Falmouth
Page 18 of 23
property management services company to manage certain duties of the Trustees shall be
permitted unless an alternative means of discharging the Trustees' maintenance
obligations has been approved by the Town of Falmouth Board of Appeals.
(22) Disposition of Trost Property. Upon termination of the Trust, the Trust
property shall be conveyed to the Homeowners as tenants in common, subject to the
terms and provisions of the Comprehensive Permit and all other matters of record which
henceforth shall be enforceable by and against the Homeowners, joint and severally.
(23) Reliance by Third Parties. A certificate signed by any one of the
Trustees and acknowledged before a Notary Public shall be conclusive evidence in favor
of any person, firm, corporation, trust or association acting in good faith in reliance
thereon as to the truth of any matter or facts stated therein relating to:
(a) the death, resignation, removal or appointment of a Trustee;
(b) compliance by the Trustees and Homeowners with any requirement of this
Trust;
(c) the terms of this instrument and any amendment or termination of this Trust;
(d) the fact of the validity of any action taken by the Trustees or the Homeowners
and to the authority of the Trustees or Homeowners to take such action; and
the number of Homeowners acting in favor of any matters; or
(e) any other matter pertaining to the Trustees, Homeowners or the Trust property.
When recorded with the Barnstable Registry of Deeds, such certificate shall be
conclusive evidence to all persons regardless of whether they have notice thereof or act in
reliance thereon.
(24) Recording. All amendments to this Trust and resignations and
appointments of Trustees shall be filed with the Barnstable Registry of Deeds and any
person shall be entitled to rely on the records of said Registry with respect to the
termination of the Trust, the temps of the Trust, any amendment thereto, and the identity
Bk 36283 Pg82 #11263
Declaration of Trust
Willett Way, Falmouth
Page 19 of 23
of the Trustees, the identity of the Homeowners, and to any other matter pertaining to the
Trust, the Trustees, or the Homeowners of the Trust property.
(25) Governing Law. This Trust shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts.
(26) Enforcement. If the Trustees at any time in their reasonable judgment
determine that a Homeowner is violating or attempting to violate the terms and
provisions of this Trust or the terms and provisions of the Declaration of Protective
Covenants or the Rules and Regulations set forth on Schedule A thereto, the Trustees
may prosecute proceedings at law or equity against such Homeowner. Prior to
initiating such proceedings, the Trustees shall in writing request the Homeowner to
cease the action resulting in the violation of such terms and provisions or perform the
needed action to conform to such terms and provisions. If the Trustees believe the
violation to constitute an emergency, the Trustees shall so state in the written request. In
the event the Homeowner fails to take such action or cease such action, as the case may
be, within thirty+ (30) days (or such reasonably shorter period in case of emergency as the
Trustees shall determine) of the Trustees' request, the Trustees shall be entitled to enter
upon and have access to the Homeowner's lot for the purpose of correcting any violation
or having work performed to correct such violation, the cost of which shall be borne by
the Homeowner. The cost of such work shall constitute a lien upon such lot and the
Homeowner shall be personally liable therefor and such lien shall have the same priority
as a lien under Section 10 hereof.
If the Homeowner objects to the Trustees' written request and intends to not
comply with said written request, he/she may, with the assent of the Trustees, attempt to
resolve the dispute pursuant to Section 27 herein by requesting mediation within ten (10)
days of receipt of the Trustees' written request. If the Trustees receive the Homeowner's
timely request for mediation and the Trustees believe the violation in question does not
constitute an emergency situation, the Trustees may, in their sole discretion, not
Bk 36283 Pg83 #11263
Declaration of Trust
Willett Way, Falmouth
Page 20 of 23
commence to take action or perform the needed maintenance, repair or replacement or
correct the violation and proceed with resolution of the dispute pursuant to Section 27.
Nonpayment of Association assessments, fees imposed for rule violation, and/or
reimbursement for repairs made and work performed by the Association are not subject
to, and are excepted from, this Section 26. See Section 10 pertaining to such nonpayment
of Association assessments.
(27) Dispute Resolution. Subject always to the terms and conditions set forth in
Section 26, any Homeowner aggrieved by any decision, action, or inaction of the
Trustees in the administration of the Trust, excepting assessments or liens for work done
to correct violations of this Trust or the Declaration of Protective Covenants by
Homeowner, shall resolve the decision, action or inaction by mediation. However, in the
first instance, the aggrieved Homeowner will first attempt resolution by discussion with
the Trustees, and the Trustees will attempt resolution by discussion with the Homeowner.
(a) In the event agreement cannot be reached by discussion, the Homeowner
shall endeavor to resolve any claim or dispute concerning a decision or action of the
Trustees by mediation which shall be mediated by a neutral mediator from the Cape Cod
Dispute Resolution Center ("CCDRC"), the Real Estate Bar Association ("REBA"), its
successors in title, or a mutually agreed upon mediation service. Request for mediation
shall be filed in writing with the Trustees and with the CCDRC, REBA or other mutually
agreed upon mediation service, and shall be made no later than ninety (90) days after the
decision or action in question has been made or taken. A copy of the request shall be
forwarded to Habitat.
(b) The Homeowner and Trustees shall share the mediator's fee and any filing
fees equally. The mediation shall be held in Falmouth unless another location is mutually
agreed upon. Agreements reached in mediation shall be final and conclusive between the
Homeowner and Trustees, enforceable as settlement agreements in any court having
jurisdiction thereof, and judgment may be entered upon it in accordance with applicable
law in any court having jurisdiction thereof.
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Declaration of Trust
Willett Way, Falmouth
Page 21 of 23
(c) Upon the request of the Trustees, the property management services company
may serve in all instances as the agent of the Trustees.
(d) Nonpayment of Association assessments, fees imposed for rule violation,
and/or reimbursement for repairs made and work performed by the Association are not
subject to, and are excepted from this Section 27.
[end of document text — signature page follows]
Bk 36283 Pg85 #11263
Declaration of Trust
Willett Way, Falmouth
Page 22 of 23
Executed as a sealed instrument this day of'it 2024.
HABITAT FOR HUMANITY OF CAPE COD, INC.
By:
Wendy J. Cullinan, Fr si tt'
By:r/
Mary Ann Mills -Lassiter, Trustee
Bk 36283 Pg86 #11263
otary Public
,
My commission expires:at L lalv:21���
,
Declaration of Trust
Willett Way, Falmouth
Page 23 of 23
COMMONWEALTH OF MASSACHUSETTS
Barnstable County + ,
On this day of 2024 before me, the undersigned notary
public, personally appeared Wendy J. Cullinan, President of Habitat for Humanity of
Cape Cod, Inc. personally known to me to be the person whose name is signed on the
preceding or attached document, and acknowledged to me that it is the tree act and deed
of said corporation, for its stated purpose.
Ndtar} Public IT _ J ,
My commission expires: K'�(tt'�l�f c2/'�C�
Imberly A. Dupuis
NOTARY PUBLIC
CamnwnNrearyn afMe h
Nhr C&MIsHon E�pifss " 1 j
COMMONWEALTH OF MASSACHUSETTS
Barnstable County
On this.' day of 2024. before me, the undersigned notary public.
personally appeared Mary Ann Mills -Lassie roved to e, through satisfactory evidence
of identification, which was �', , to be the
person whose name is signed n the preceding or attached document, and acknowledged
to me that she signed it voluntarily for its stated purpose.
5 '
r '
Kimbe6y A. Dupuis
■t��,' NOTARY PUBLIC
li( C&"— VW1h of M Chum
MyComm�asmnExpires�jjZ��
J0HN F. FADE, REt3ISTER
SARN3TA8L8 COUNTY R8CiI5TRY OF DEEDS
RECBIVED S RECORDED ELBCTRONICALLY