HomeMy WebLinkAbout11 Gate Way Master Deed and Declaration of Trust Received 07.28.26GATE WAY CONDOMINIUM
MASTER DEED & DECLARATION OF TRUST
WITH BY-LAWS AND RULES & REGULATIONS
Information MD Dec Trust
1. Description of Premises Pg 1, Sec 1
2. Description of Buildings Pg.1 (Sec. 2)
2. Description of Units Pg.2 (Sec. 3)
4. Septic Systems as Common Area Pg.3 (Sec. 4d)
5. Use of Units Pg.3 (Sec. 6)
6. Septic System Maintenance
RECEIVED
J U L Z B 2026
YARMCKI H
BOARD OF APPEALS
Art V, Sec 1(n) Pg 6
GATE WAY CONDOMINIUM
MASTER DEED
MICHAEL KEARNEY and LINDA KEARNEY, of 19 Fairway Road, South
Yarmouth, Massachusetts 02664 (hereinafter referred to as the "Declarant" and/or "Seller"),
being the sole owners of the land at 11 Gate Way, South Yarmouth, Massachusetts 02664,
described in Paragraph 1 below, do hereby, by duly executing and recording this Master Deed,
submit said land, together with the buildings and improvements erected thereon, and all
easements, rights and appurtenances belonging thereto (hereinafter referred to as the
"Condominium"), to the provisions of Chapter 183A of the General Laws of the Commonwealth
of Massachusetts, and do hereby state that they propose to create, and do hereby create, with
respect thereto, a Condominium to be governed by and subject to the provisions of said Chapter
183A.
1. Description of Land.
The land, together with the buildings thereon, situated in Yarmouth, Barnstable County,
Massachusetts, bounded and described as follows:
EASTERLY by Parkers Neck Road, as shown on plan hereinafter mentioned, 77
feet;
SOUTHERLY by Lot 43, as shown on said plan, 100 feet;
WESTERLY by Lot 35, as shown on said plan, 102 feet;
NORTHERLY by Gate Way, as shown on said plan, 75 feet; and
NORTHEASTERLY on a curved line having a radius of 25 feet and forming the
intersection of Gate Way and Parkers Neck Road, as shown on said
plan, 39.27 feet.
Being shown as LOT 42 on a plan of land entitled "Gateway Isles' A Subdivision Plan of Land
in West Yarmouth, Mass. Petitioners Gateway Construction Co., Inc. Scale 1"=60' May 1963
Charles S. Kennedy Surveyor — Designer West Dennis, Mass. Cape Cod", which said plan is
duly filed in Barnstable County Registry of Deeds in Plan Book 181, Page 125.
The above -described premises are conveyed subject to and with the benefit of all right, rights of
way, easements, appurtenances, reservations and restrictions of record, and especially as set forth
in a deed from James F. Rhuan dated December 13, 1966 and recorded with the Barnstable
County Registry of Deeds in Book 1354, Page 41, if still in full force and effect.
For title see deed in Book 29809, Page 170.
PROPERTY ADDRESS: 11 Gate Way, South Yarmouth, Massachusetts 02664
DRAFT ,
The above described premises are declared subject to and with the benefit of all rights,
rights of way, easements, takings, Board of Appeals decisions, appurtenances, reservations and
restrictions of record, insofar as the same are in force and applicable.
2. Description of Buildings
There is one building (hereinafter referred to as "the Building") located on the land above
described. There are two (2) residential units contained in one building (collectively
"Residential Units"). The Building is constructed primarily of wood, and is of 1 story. There is
a crawlspace under the Building. The Building is located at 11 Gate Way, South Yarmouth,
Massachusetts 02664, and located on a corner lot at the intersection of Gate Way and Parkers
Neck Road. The Building or Units, as defined herein, may be altered, extended or replaced, but
only with the prior written consent of 100% of the Trustees created on this date or appointed
hereafter, and only when such alteration, extension, and/or replacement has been approved by the
Town of Yarmouth, and the Unit Owner secures all necessary permits and approvals. Any costs
to facilitate an amendment to this Master Deed or the Condominium Trust created on even date
herewith which is necessitated by said alteration, extension, and/or replacement shall be borne
solely by the Unit Owner seeking to alter, extend and/or replace their Unit.
3. Description of Units.
The designation of each Condominium Unit (the "Units"), a statement of its location,
approximate area, number of rooms, the immediate common area to which it has access, and its
proportionate interest in the common areas and facilities, are set forth on Schedule A annexed
hereto and made a part hereof. The boundaries of each of the Units are as follows:
The boundaries of the Units contained in the Building is the entire structure of the
building located in each respective Exclusive Use Area, from and including the lower surface of
the foundation up to and including the top of the roof surface; and including the entire interior
and exterior of the building (inclusive of decks, patios, porches, walks, stoops, garages,
chimneys, steps and bulkhead), and any shed or accessory outbuilding which is accessory to each
Unit.
The Unit shall also include all components of the subsurface sewage system which
exclusively serves that particular Unit. The common wall between the Units in the former
breezeway, and now an enclosed mudroom shall be common area, and that will be maintained,
repaired and/or replaced by the owner of each Unit in accordance with their respective common
percentage interests. It is the intention of the Declarant that the owner of each Unit shall be
solely responsible for the maintenance and upkeep of the portion of the Building in which each
Unit is located, and that the cost of the same shall be borne solely by that Unit Owner.
The owner of each respective unit shall have the exclusive right to use, occupy, maintain,
and improve the area designated for the Unit as "Exclusive Use Area" or "Exclusive Use" on the
Site Plan recorded herewith, including any and all exterior steps, bulkheads, porches, patios,
decks, exterior showers, balconies, the respective driveways for each Unit as depicted on the Site
Plan, the respective yards, lawns, gardens, roads, walkways, and the improvements of each Unit,
thereon and thereof, and all other exterior structures, and the Condominium Land located within
the "Exclusive Use Area" of each Unit. The "Exclusive Use Area" for each Unit shall be
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denoted on the Site Plan. The Exclusive Use Area line, denoted on the Condominium Site Plan,
referenced herein, runs through the middle of the former breezeway, and now an enclosed
mudroom , the owner of Unit 2 shall have exclusive use of that area which is accessible from the
inside of Unit 2, and is currently maintained for a washer and dryer and living area. The small
portion of the former breezeway, and now an enclosed mudroom located to the rear of the garage
of Unit 1 shall be reserved exclusively for the owner of Unit 1.
Each Unit Owner shall have an easement for any utility line or meter which may be
located in one Exclusive Use Area, but serving the other Unit, for purposes of inspection, repair,
or replacement of same.
4. Description of Common Areas and Facilities.
The common areas and facilities of the Condominium (the "Common Elements") consist
of the entire Condominium, excluding all parts of the Units, and include, without limitation, the
following:
(a) The land above described, together with the benefit of and subject to all rights,
easements, restrictions and agreements of record, insofar as the same may be in force and
applicable.
(b) Installations of central services in the common areas, such as power, light, gas, hot
and cold water lines, heating, air conditioning, and waste disposal, including all equipment
attendant thereto (but not including equipment contained within or servicing a single Unit and
which is separately metered, which shall be considered part of that Unit it services). Any central
service which serves one Unit shall be the sole responsibility of the owner of that Unit. Any
central service which enters the property and is then separately metered will be a common
element until it meets the separate meter, at which point said central service, from the entry to
the meter to the Unit, shall be the sole responsibility of the owner of the Unit which it serves. As
presently configured, the water usage will be shared by each unit owner, in accordance with each
unit's respective percentage interest in the common areas and facilities.
(c) All conduits, chutes, ducts, plumbing, wiring, flues and other facilities for the
furnishing of; utility services or waste removal which are contained in portions of the Building
contributing to the structure or support thereof, and all such facilities contained within any Unit
which serve parts of the Units other than the Unit within which such facilities are contained.
(d) The maintenance, upkeep, repair and replacement of the 4 bedroom sized Title 5
Septic Sewage Disposal System serving the Building shall be the responsibility of the owners of
Units 1 and 2, in accordance with each unit's respective percentage interest in the common areas
and facilities.
(e) Each of the Units (Owners) shall have a license for the exclusive use of two (2)
parking spaces, as described in the Unit Deeds and Schedule A annexed hereto, the location of
which shall be as shown on the hereinafter referenced condominium Site Plan.
(f) All retaining walls, bulkheads, the parking lot, its asphalt and pavers, grassy
areas, driveways, transformers, blowers, brick walks, drainage systems and all other areas
denoted on the Site Plan which are not part of the Units.
(g) Such additional common areas and facilities as may be defined in Chapter 183A.
5. Floor Plans and Site Plan
Prior to the recording hereof, there has been recorded with the Barnstable County
Registry of Deeds a set of floor plans of the Building, entitled, "Plan Of Land Gate Way
Condominium 11 & 11A Gate Way, in Yarmouth, Massachusetts (Barnstable County)
Condominium Unit Plan" Dated _, 2026, Scale 1"— 4', by BSC Group, consisting of
one (1) sheet and showing the layout, location, Unit numbers and dimensions of the Units, and
stating the name of the Building, and bearing the verified statement of , PLS,
certifying that the plans fully and accurately depict the layout, location, Unit numbers and
dimensions of the Units as built, and a Site Plan recorded in said Registry entitled ""Plan Of
Land Gate Way Condominium 11 & 11A Gate Way, in Yarmouth, Massachusetts (Barnstable
County) Condominium Unit Plan" Dated �, 2026, Scale 1 "= 4', by BSC Group,
consisting of one (1) sheet. The Floor Plan is recorded in Plan Book , Page
and the Site Plan is recorded in Plan Book �, Page
6. Use of Building and Units.
The Units are intended only for and may be used only for year-round residential
purposes. For further description of Units and restrictions thereon see paragraph 3 above and
Schedule A attached hereto. The Units are currently used for residential purposes. No other use
may be made of any Unit without the prior written consent of the Trustees of the Gate Way
Condominium Trust, which trust is hereinafter described. The Units and the Common Elements
may be used only for such residential purposes, and accessory uses as are commonly undertaken
in connection with such purposes and are subject to rules and regulations adopted from time to
time by the Trustees of the Gate Way Condominium Trust recorded herewith
The Gate Way Condominium Trust and the condominium Unit Owners are, by
acceptance of a unit deed for the condominium, subject to a Decision of the Yarmouth Zoning
Board of Appeals dated _ and recorded in the Barnstable County Registry
of Deeds in Book , Page
7. Amendment of Master Deed.
This Deed may be amended only by unanimous vote of the beneficial interest of all Unit
Owners, in person or by proxy at a meeting duly held in accordance with the provisions of the
Condominium Declaration of Trust; or in lieu of a meeting, any amendment may be approved in
writing by 100% in beneficial interest of all Unit Owners.
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8. Name of Condominium.
The Condominium is to be known as "Gate Way Condominium". A trust through which
the Unit Owners will manage and regulate the Condominium has been formed pursuant to said
Chapter 183A. The name of the trust is "Gate Way Condominium Trust". The name and
mailing address of the initial Trustees of the Trust are: Michael Kearney and Linda Kearney,
of 19 Fairway Road, South Yarmouth, Massachusetts 02664. The Declaration of Trust contains
by-laws enacted pursuant to said Chapter 183A.
9. Determination of Percentages in Common Elements.
The percentages of interest of the respective Units in the Common Elements have been
determined upon the basis of the approximate relation which the fair value of each Unit on the
date hereof bears to the aggregate fair value of all of the Units on this date.
10. Encroachments.
If any portion of the Common Elements now encroaches upon any Unit, or if any Unit
now encroaches upon any other Unit or upon any portion of the Common Elements, or if any
such encroachment shall occur hereafter as a result of. (a) settling of the Building, or (b)
alteration or repair to the Common Elements, or (c) as a result of repair or restoration of the
Building or a Unit after damage by fire or other casualty, or (d) as a result of condemnation or
eminent domain proceedings, a valid easement shall exist for such encroachment and for the
maintenance of the same so long as such Building stands.
11. Pipes, Wires, Flues, Ducts, Cables, Conduits, Public Utility Lines, and other Common
Elements.
There will be excluded from the conveyance of each of the Units so much of the
Common Elements as is located within each Unit if any. Each Unit Owner shall have an
easement in common with the owners of all other Units to use all pipes, wires, ducts, flues,
cables, conduits, public utility lines and other Common Elements located in any of the other
Units if serving his Unit. Each Unit shall be subject to an easement in favor of the owners of all
other Units to use the pipes, wires, ducts, flues, cables, conduits, public utility lines and other
Common Elements serving such other Units and located in such Unit. The Condominium
Trustees shall have a right of access to each Unit to inspect the same, to remove violations
therefrom, and to maintain, repair or replace the Common Elements contained therein or
elsewhere in the Building.
12. Units Subject to Master Deed, Unit Deed, Declaration of Trust, and Rules and
Regulations.
All present and future owners, tenants, visitors, servants, and occupants of Units shall be
subject to, and shall comply with, the provision of the Master Deed, the Unit Deed, the
Condominium Declaration of Trust, and the Rules and Regulations, as they may be amended
from time to time, and the items affecting the title to the Condominium as set forth in Paragraph
1 above. The recordation of a deed or the entering into occupancy of any Unit shall constitute an
agreement that: (a) the provisions of this Master Deed, the Unit Deed, the Condominium
Declaration of Trust, the Rules and Regulations, annexed to the Condominium Declaration of
Trust, and the Boor plans of the Condominium recorded simultaneously with and as a part of this
Master Deed, as the foregoing may be amended from time to time, and the said items affecting
title to the Condominium, are accepted and ratified by such owner, tenant, visitor, servant,
occupant, or any person having at any time any interest or estate in the Unit, and all of such
provisions shall be deemed and taken to be covenants running with the land and shall bind any
person having at any time any interest or estate in the Unit, as though such provisions were
recited and stipulated at length in each and every deed or conveyance or lease thereof; and (b) a
violation of the provisions of this Master Deed, the Unit Deed, Condominium Declaration of
Trust, or Rules and Regulations by any such person shall be deemed a substantial violation of the
duties of the Condominium Unit Owner.
13. Sale, Rental and Mortgaging of Units.
The Seller reserves to themselves and their successors and assigns (a) the right to sell,
rent or mortgage Units to any purchaser, lessee or mortgagee upon such terms and conditions as
they may deem acceptable without procuring the consent of other Unit Owners or of the
Condominium Trustees; (b) the right to transact any business within the Condominium to
accomplish the foregoing; and (c) the right to use any Units owned by the Seller as models for
display for the purpose of selling or leasing Units. In the event that there are unsold Units, the
Seller shall have the same rights, as owner of unsold Units, as any other Unit Owner.
14. Invalidity.
The invalidity of any provision of this Master Deed shall not be deemed to impair or
affect the validity of the remainder of this Master Deed, and in such event, all of the other
provisions of this Master Deed shall continue in full force and effect as if such invalid provision
had never been included herein.
15. Waiver.
No provision contained in this Master Deed shall be deemed to have been abrogated or
waived by reason of any failure to enforce the same, irrespective of the number of violations or
breaches which may occur.
16. Provisions for the Protection of Mortgagees
Notwithstanding anything in this Master Deed or in the Condominium Trust and By —
Laws to the contrary, the following provisions shall apply for the protection of the holders of the
first mortgages (hereinafter "First Mortgagees") of record with respect to the Units and shall be
enforceable by any First Mortgagee:
(a) In the event that the Unit Owners shall amend this Master Deed or the Condominium
Trust to include therein any right of first refusal in connection with the sale of a Unit, such right
of first refusal shall not impair the rights of a First Mortgagee to:
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(i) Foreclose or take title to a Unit pursuant to the remedies provided in its mortgage; or
(ii) Accept a deed (or assignment) in lieu of foreclosure in the event of default by a
mortgagor; or
(iii) Sell or lease a Unit acquired by the First Mortgagee through the procedures described
in subparagraphs (i) and (ii) above.
(b) Any party who takes title to a Unit through a foreclosure sale duly conducted by a
First Mortgagee shall be exempt from any such right of first refusal adopted by the Unit Owners
and incorporated in this Master Deed or the Condominium Trust.
(c) Any First Mortgagee who obtains title to a Unit by foreclosure or pursuant to any
other remedies provided in its mortgage or by law shall not be liable for such Unit's unpaid
common expenses or dues which accrued prior to the acquisition of title to such Unit by such
First Mortgagee;
(d) Any and all common expenses, assessments and charges that may be levied by the
Trust in connection with unpaid expenses or assessments shall be subordinate to the rights of any
First Mortgagee pursuant to its mortgage on any Unit to the extent permitted by applicable law;
(e) A lien for common expenses assessments shall not be affected by any sale or transfer
of a Unit, except that a sale or transfer pursuant to a foreclosure of a first mortgage shall
extinguish a subordinate lien for assessments which became payable prior to such sale or
transfer. However, any such delinquent assessments which are extinguished pursuant to the
foregoing provision may be reallocated and assessed to all Units as a common expense. Any
such sale or transfer pursuant to a foreclosure shall not relieve the purchaser or transferee of a
Unit from liability for, nor the Unit from the lien of, any assessments made thereafter.
(f) Unless each of the institutional first mortgage lenders holding mortgages on the
individual units at the condominium have given their prior written approval, neither the Unit
Owners nor the Trustees of the Condominium Trust shall be entitled to:
(i) By act or omission, seek to abandon or terminate the Condominium except in
the event of substantial destruction of the Condominium premises by fire or other casualty or in
the case of taking by condemnation or eminent domain;
(ii) Change the pro-rata interest or obligation of any individual Unit for the
purpose of. (a) levying assessments or charges or allocating distributions of hazard insurance
proceeds or condemnation awards, or (b) determining the pro -rats share of ownership of each
Unit in the Common Areas and Facilities; provided that this prohibition shall be deemed waived
to the extent necessary to allow the phasing of the Condominium pursuant to the rights reserved
in this Master Deed; or
(iii) Partition or subdivide any Unit; or
(iv) 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 General and Limited Common Areas and Facilities contemplated herein or
in the Condominium 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 of the Condominium Trust to connect adjoining Units shall require the
prior approval of only the mortgagees of the Units to be connected; and provided further that
this prohibition shall be deemed waived to the extent necessary to allow the phasing of the
Condominium pursuant to the rights reserved in this Master Deed; or
(v) Use hazard insurance proceeds for losses to any property of the Condominium
(whether of Units or common elements) for other than the repair, replacement or reconstruction
of such property of the Condominium, except as provided by statute in case of taking of or
substantial loss to the Units and/or common elements of the Condominium.
(g) To the extent permitted by law, all taxes, assessments and charges which may become
liens prior to a first mortgage under the laws of the Commonwealth of Massachusetts shall relate
only to the individual units and not to the Condominium as a whole;
(h) In no case shall any provision of the Master Deed or the Condominium Trust give a
Unit Owner or any other party priority over any rights of an institutional first mortgagee of the
Unit pursuant to its mortgage in the case of a distribution to such Unit Owner of insurance
proceeds or condemnation awards for losses to or a taking of such Unit and/or the Common
Areas and Facilities of the Condominium;
(i) An institutional first mortgage lender, upon request to the Trustees of the
Condominium Trust, will be entitled to:
(i) Written notification from the Trustees of the Condominium Trust of any
default by its borrower who is an Owner of a Unit with respect to any obligation of such
borrower under this Master Deed or the provisions of the Condominium Trust which is not cured
within sixty (60) days;
(ii) Inspect the books and records of the Condominium Trust at all reasonable
times;
(iii) Receive (at its own expense, if the condominium contains less than 50 units)
an audited annual financial statement of the Condominium Trust within ninety (90) days
following the end of any fiscal year of the Condominium Trust;
(iv) Receive written notice of all meetings of the Condominium Trust, and be
permitted to designate a representative to attend all such meetings;
(v) Receive prompt written notification from the Trustees of the Condominium
Trust of any damage by fire or other casualty to the Unit upon which the institutional lender
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holds a first mortgage or proposed taking by condemnation or eminent domain of said Unit or the
Common Areas and Facilities of the Condominium;
(vi) Receive written notice of any lapse, cancellation or material modification of
any insurance policy or fidelity bond maintained by the Trust; and
(vii) Receive written notice of any action which requires the consent of a
specified percentage of eligible mortgagees. The Declarant intends that the provisions of this
paragraph shall comply with the requirements of the Federal Home Loan Mortgage Corporation
and The Federal National Mortgage Association with respect to condominium mortgage loans,
and all questions with respect thereto shall be resolved consistent with that intention.
The provisions of this section may not be amended or rescinded without the written
consent of all First Mortgagees, which consent shall appear on the instrument of amendment as
such instrument is duly recorded with the Registry of Deeds in accordance with the requirements
of this Master Deed.
17. 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 Master Deed nor the intent of any provision
hereof.
18. Conflicts.
Master Deed is set forth to comply with the requirements of Chapter 183A of the General
Laws of the Commonwealth of Massachusetts. In case any of the provisions stated above
conflict with the provisions of said statute, the provisions of said statute shall control.
19. Arbitration
Any dispute between Unit Owners arising under this Master Deed, or the accompanying
Declaration of Trust, which is not resolved by the parties pursuant to the terms hereof shall be
submitted to arbitration for resolution. The parties agree that arbitration shall be the exclusive
procedure with respect to such dispute, and any award or decision made pursuant to such
arbitration shall be final and binding and enforceable in ay court of appropriate jurisdiction.
Any Unit Owner aggrieved by any decision or action of the Trust in the administration of the
Condominium shall have the remedy recited in Article IX of the Trust.
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WITNESS the execution hereof, under seal, this day of , 2026.
Michael K411
Linda Kearney
COMMONWEALTH OF MASSACHUSETTS
Barnstable, ss.
On this __ day of , 2026, before me, the undersigned notary
public, personally appeared Michael Kearney and Linda Kearney, proved to me through
satisfactory evidence of identification, namely Massachusetts Driver's Licenses, to be the
persons whose names are signed on the preceding or attached document, and acknowledged to
me that they signed it voluntarily for its stated purpose.
Notary Public
My Commission Expires:
SEAL HERE
U
MASTER DEED OF GATE WAY CONDOMINIUM
Schedule A
Description of Building
The building comprising the Condominium consist of one building containing a total of
two units as follows:
The Building comprises Unit 1 and Unit 2. The Building is of wood frame construction,
constructed with wooden exterior walls, wooden framing, windows and screens with glass and
flush wooden doors.
All as more accurately described on the Gate Way Condominium floor plans recorded
herewith.
Unit Floors # of Rooms
2
7
UNIT DESCRIPTIONS AND FEATURES
# of Apx.
Bdrms Sq. Ft. Area
2 1,373± s/f
5 2 936± s/f
Undivided
Interest Unit %
60.00% (Unit 1 has a 1 car garage)
40.00%
Total Undivided Interests 100%
The hereinabove percentages are in the approximate relation to the fair value each Unit
bears to the aggregate fair value of all the Units as of the date hereof.
OTHER UNIT DESCRIPTIONS AND FEATURES
The Unit dimensions shown on the plans include the entire building structure in which
the units are located as more fully described in this Master Deed.
Each Unit has an immediate access easement to common areas contiguous thereto.
The boundaries of the Units are described in Paragraph 3 of the Master Deed. Access to
immediate common areas are shown on the floor plans recorded herewith and on the Unit Plans
to be recorded with the unit deeds.
Unit Owners who seek to alter, extend or replace their Unit, as long as accomplished in
accordance with Paragraph 2 hereof, will not be constrained by the Unit Descriptions and
Features listed above, as they are only descriptive of the Units as they exist on the date of this
document.
The Units (Owners) are hereby granted an exclusive use license for two (2) parking
spaces each as follows:
Unit Parkins Spaces as Shown on Site Plan
1 2 spaces denoted as A l and B 1
2 2 spaces denoted as A2 and B2
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GATE WAY CONDOMINIUM TRUST
Table of Contents
Article
I. Name of Trust
II. The Trust and Its Purpose
III. The Trustees
IV. Beneficiaries and the Beneficial Interest in the Trust
V. By -Laws
Section 1. Powers and Duties of Trustees
Section 2. Common Expenses, Profits and Funds
Section 3. Insurance
Section Q. Rebuilding and Restoration; Improvements
Section 5. Rules and Regulations
Section 6. Meetings
Section 7. Notices to Unit Owners
Section 8. Inspection of Books; Reports to Unit Owners
Section 9. Checks, Notes, Drafts and Other Instruments
Section 10. Seal
Section 11. Fiscal Year
Section 12. Maintenance of Units
VI. Rights and Obligations of Third Parties; Dealing With the Trustees; Limitation of
Liability
VII. Amendments and Termination
DRAFT
Vill. Sale of Units
IX. Disputes
X. Construction and Interpretation
Schedule A• --Rules and Regulations
GATE WAY CONDOMINIUM TRUST
Declaration of Trust
This Declaration of Trust made this _ day of , 2026, by
MICHAEL KEARNEY and LINDA KEARNEY, of 19 Fairway Road, South Yarmouth,
Massachusetts 02664 (hereinafter called the "Trustee" or "Trustees", which term and any
pronoun referring thereto shall be deemed to include their successors in trust hereunder and to
mean the Trustee or Trustees for the time being hereunder, wherever the context so permits).
WITNESSETH:
ARTICLE I
Name of Trust
The Trust hereby created shall be known as "Gate Way Condominium Trust", and under
that name, so far as legal, covenant and practicable, shall all business carried on by the Trustee
be conducted and shall all instruments in writing by the Trustee be executed.
ARTICLE II
The Trust and Its Purpose
Section 1. All of the rights and powers in and with respect to the common areas and
facilities (hereinafter called the "Common Elements") of the Gate Way Condominium
(hereinafter called the "Condominium"), established by a Master Deed of even date and recorded
herewith, which are by virtue of the provisions of Chapter 183A of the Massachusetts General
Laws conferred upon or exercisable by the organization of unit owners of the Condominium, and
all property, real and personal, tangible and intangible, conveyed to the Trustee hereunder shall
vest in the Trustee or Trustees as joint tenants, with right of survivorship, as Trustee of this
Trust, in trust to exercise, manage, administer and dispose of the same and to receive the income
thereof for the benefit of the owners of record from time to time of units of the Condominium
(hereinafter called the "Unit Owners"), according to the schedule of beneficial interest set forth
in the Master Deed, as provided in Article IV, Section 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 said Chapter 183A for the purposes therein set forth.
Section 2. It is hereby expressly declared that a trust and not a partnership has been
created and that the Unit Owners are beneficiaries and not partners or associates or any other
relation whatever among themselves with respect to the trust property, and hold no relation to the
Trustees other than as beneficiaries, with only such rights as are conferred upon them as such
beneficiaries hereunder and under and pursuant to the provisions of said Chapter 183A.
ARTICLE III
The Trustees
Section 1. There shall be a Board of Trustees hereunder consisting initially of two (2)
individuals chosen by Michael Kearney and Linda Kearney (the "Sellers"), to serve for a term
which shall expire at the later of the annual meeting of Unit Owners on the last Saturday of May,
next, unless such term shall expire earlier, as hereinafter provided, or the Sellers convey all 2
Units of the condominium. The initial Trustees so chosen is the Trustee named herein: Michael
Kearney and Linda Kearney. Any vacancy in the office of a Trustee appointed by the Seller
shall be filled by any of the Sellers.
Except as set forth above, the Board of Trustees shall consist of two (2) Trustees,
designated as one each by the owner(s) of each of the two (2) individual condominium units.
Each vacancy in the office of a Trustee shall be filled by instrument in writing setting
forth: (a) the appointment of a natural person to act as such Trustee, signed: (i) by the Seller (if
the vacancy is in the office of a Trustee chosen by the Seller) or by Unit Owners as designated
above, or (ii) if Unit Owners entitled to so designate a Trustee have not within thirty (30) days
after the occurrence of such vacancy made such appointment, by a majority of the then
remaining Trustees, or by the sole remaining Trustee if there be only one; and (b) the acceptance
of such appointment, signed and acknowledged by the person so appointed. Such appointment
shall become effective upon the recording with Barnstable Registry of Deeds of a certificate of
such appointment, signed and accepted as aforesaid, and such person shall then be and become
such Trustee and shall be vested with the title to the trust property, jointly with the remaining or
surviving Trustees or Trustee, without the necessity of any act of transfer or conveyance. If for
any reason any vacancy in the office of Trustee shall continue for more than sixty (60) days and
shall at the end of that time remain unfilled, a Trustee or Trustees to fill such vacancy or
vacancies may be appointed by any court of competent jurisdiction upon the application of any
Unit Owner and notice to all Unit Owners and Trustees and to such other parties in interest, if
any, to whom the court may direct that notice be given.
Notwithstanding the foregoing, upon the recording of a Unit Deed, the existing Trustee
representing that particular Unit shall automatically be deemed to have resigned and the first
individual named in the Grantee clause of the Deed (whether individually or as a fiduciary) being
deemed to have been appointed and accepted as successor trustee, unless a resignation and
appointment of successor trustee is recorded contemporaneously with the Deed.
The foregoing provisions of this Section to the contrary notwithstanding, despite any
vacancy in the office of Trustee, however caused and for whatever duration, the remaining of
surviving Trustees, subject to the provisions of the immediately following Section, shall continue
to exercise and discharge all of the powers, discretions and duties hereby conferred or imposed
upon the Trustees.
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Section 2. In any matters relating to the administration of the Trust hereunder and the
exercise of the powers hereby conferred, the Trustees may act by a majority vote at any duly
called meeting at which a quorum is present as provided in Paragraph A of Section 6 of Article
V. The Trustees may also act without a meeting by instrument signed by a majority of their
number.
Section 3. Any Trustee may resign at any time by instrument in writing, signed and
acknowledged in the manner required in Massachusetts for the acknowledgment of deeds, and
such resignation shall take effect upon the recording of such instrument with said Registry of
Deeds.
Section 4. No Trustee named or appointed as hereinbefore provided, whether as original
Trustee or as successor to or as substitute for another, shall be obligated to give any bond or
surety or other security for the performance of any of his duties hereunder, provided, however,
that Unit Owners entitled to more than fifty per cent (50%) of the beneficial interest hereunder
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 a 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.
Section 5. No Trustee hereinbefore named or appointed as hereinbefore provided shall
under any circumstances or in any event be held liable or accountable out of his personal assets
or be deprived of compensation by reason of any action taken, suffered or omitted in good faith
or be so liable or accountable for more money or other property than he actually receives, or for
allowing one or more of the other Trustees to have possession of the Trust books or property, 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 interest or gain or by reason of anything
except his own personal and willful malfeasance and default.
Section 6. No Trustee shall be disqualified by his office from contracting or dealing with
the Trustees or with one or more Unit Owners (whether directly or indirectly because of his
interest individually or the Trustees' interest or any Unit 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 in any way
interested 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 relationship hereby established, provided the
Trustee shall act in good faith and shall disclose to the other Trustees the nature of his interest
before the dealing, contract, or arrangement is entered into.
Section 7. The Trustees and each of them shall be entitled to indemnity both out of the
trust property and by the Unit Owners against any liability incurred by them or any of them in
the execution hereof, including, without limitation, liabilities in contract and in tort and liabilities
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for damages, penalties and fines. Each Unit 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.
Section 8. The Trustees shall elect from their number, at the annual meeting of the
Trustees, a Chairman, and Treasurer/Secretary, who shall have such duties as are determined by
the Trustees.
Section 9. The compensation of the Trustees shall be determined at each annual meeting
of Unit Owners, except for the original Trustee chosen by the Seller who agree to serve without
compensation.
ARTICLE IV
Beneficiaries and the Beneficial Interest in the Trust
Section 1. The beneficiaries shall be the Unit Owners of the Condominium, for the time
being. The beneficial interest in the Trust hereunder shall be divided among the Unit Owners in
the percentage of undivided beneficial interest appertaining to the Units of the Condominium, all
as set forth in Schedule A of the Master Deed, incorporated herein by reference with the same
force and effect as though fully set forth in the body of this instrument.
Section 2. The beneficial interest of each Unit of the condominium shall be held and
exercised as a unit and shall not be divided among several owners of any such Unit. To that end,
whenever any of said Units is owned of record by more than one person, the several owners of
such Unit 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 of such Unit. Any such designation shall take effect upon receipt by the
Trustees of such notice, 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 Board of Trustees may, by
majority vote, designate any one of such owners for such purposes.
Section 3. A Unit Owner may vote in person or by a written proxy dated no earlier than
six (6) months prior to the date of the meeting at which such vote is taken. A proxy purporting
to be executed by or on behalf of a Unit Owner shall be deemed valid unless challenged at or
prior to its exercise. A proxy with respect to a Unit held in the names of two or more persons
shall be valid if executed by one of them, unless at or prior to the exercise of the proxy, the
Trustees receive specific notice to the contrary from any one of said persons.
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ARTICLE V
By —Laws
The provisions of this Article V shall constitute the By —Laws of this Trust and the
organization of Unit Owners established hereby, to wit:
Section 1, Powers and Duties of Trustees. The Board of Trustees shall have the powers and
duties necessary for the administration of the affairs of the Condominium and may do all such
acts and things except, as by law or by the Master Deed or by this Trust, those which may not be
delegated to the Board of Trustees by the Unit Owners. Such powers and duties of the Board of
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 common expenses required for the affairs of the Condominium,
including, without limitation, the operation and maintenance of the Condominium.
(c) Collection of the common charges from the Unit Owners.
(d) Employment and dismissal of the personnel necessary or advisable for the
maintenance and operation of the Common Elements.
(e) Adoption and amendment of rules and regulations covering the details of the
operation and use of the Condominium.
(f) Opening of bank accounts on behalf of the Condominium and designating the
signatories required therefore.
(g) Leasing, managing and otherwise dealing with such community facilities as may be
provided for in the Master Deed as being common areas and facilities ("Common Elements").
(h) Owning, conveying, encumbering, leasing and otherwise dealing with Units conveyed
to it or purchased by it as the result of enforcement of the lien for common expenses, or
otherwise.
(i) Obtaining of insurance for the Condominium, including the Units, pursuant to the
provisions hereof.
0) Making of repairs, additions and improvements to, or alterations of, the
Condominium, and repairs to and restoration of the Condominium in accordance with the other
provisions of this Trust.
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(k) The Board of Trustees shall have the power to enforce obligations of Unit Owners; to
enforce the rules and regulations of the Condominium; to allocate income and expenses; and to
do anything and everything else necessary and proper for the sound management of the
Condominium. In case of persistent violation of the rules and regulations by a Unit Owner, the
Board of Trustees shall have the power to require such Unit Owner to post a bond to secure
adherence to the rules.
(1) Grant or relocate easements.
(m) Enter into management contracts for the management of the Common Elements.
(n) Make arrangements for the maintenance, repair, upkeep and, if necessary,
replacement of the septic systems servicing each unit specifically including the pumping out of
the same at least every third year.
Section 2. Common Expenses, Profits and Funds.
A. Each Unit Owner shall be liable for their respective common expenses and shall be
entitled to common profits of the Condominium according to his respective percentage of
undivided interest in the Common Elements as set forth in Schedule A of the Master Deed which
is incorporated herein by reference with the same force and effect as though fully set forth in the
body of this instrument. The Trustees may at any time or times distribute common profits
among the Unit Owners in such proportions. The Trustees may, to such extent as they deem
advisable, set aside common funds of the Condominium as reserve or contingent funds and may
use the funds so set aside for reduction of indebtedness or other lawful capital purpose, or,
subject to the provisions of the following Section 3, for repair, rebuilding or restoration of the
trust property, or for improvements thereto, and the funds so set aside shall not be deemed to be
common profits available for distribution.
B. At least thirty (30) days prior to the commencement of each fiscal year of this Trust,
the Board of Trustees shall estimate the common expenses expected to be incurred during such
fiscal year, together with a reasonable provision for contingencies and reserves, and after taking
into account any undistributed common profits from prior years, shall determine the assessment
to be made for such fiscal year. The Trustees shall promptly render statements to the Unit
Owners for their respective shares of such assessment, and each Unit Owner thereafter shall pay
one -twelfth of his share of the estimated common expenses monthly in advance of the first day
of each month, unless other payment terms are determined by the Board of Trustees. In the
event that the Board of 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 Board of Trustees shall make a supplemental assessment or
assessments and render statements therefore in the manner aforesaid, and such statements shall
be payable and take effect as aforesaid. The Board of Trustees may in its discretion provide for
payments of statements in monthly or other installments. In order to create a reserve fund for
future contingencies, the Board of Trustees may assess from time to time, in addition to the
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foregoing assessments, each Unit Owner for a sum or sums sufficient to provide the
Condominium Trust with sufficient capital to meet emergencies and other contingencies. The
amounts due hereunder, together with interest thereon, if not paid when due, at a rate equal to
three per cent (3%) above prime rate of a financial institution to be designated by the Trustees
then in effect, shall constitute a lien on the Unit of the Unit Owner assessed, pursuant to the
provisions of Section 6 of said Chapter 183A.
C. The Board of Trustees shall expend common funds only for common expenses and
lawful purposes permitted hereby and by the provisions of said Chapter 183A.
Section 3. Insurance.
A. The Trustees shall obtain and maintain, to the extent available, a master blanket policy
of casualty and physical damage insurance for the benefit and protection of the Trustees and all
of the Unit Owners, naming as the insured, and with loss proceeds payable to, the Trustees
hereunder, as Insurance Trustees for all of the Unit Owners and their respective mortgagees, as
their interests may appear, such insurance to cover all insurable improvements forming part of
the Common Elements; but not including: (a) the Units, the insuring of which shall be the sole
obligation of the respective owner of each Unit; (b) the furniture, furnishings or other personal
property of the Unit Owners, whether within the Units, or elsewhere; or (c) improvements
within a Unit, as to which it shall be the separate responsibility of the Unit Owners to insure.
Such insurance shall, unless the same is not obtainable, be maintained in an amount, as
determined by the Trustees, of the insured property, and shall insure against: (a) loss or damage
by fire and other hazards of the common areas and facilities, covered by the standard extended
coverage endorsement; and (b) such other hazards or risks as the Trustees from time to time in
their discretion shall determine to be appropriate, including, but not limited to, vandalism,
malicious mischief, windstorm and water damage, earthquake, and boiler and machinery
explosion or damage.
B. All policies of casualty or physical damage insurance shall, unless the same is not
obtainable, provide: (a) that such policies may not be cancelled, terminated or substantially
modified without at least twenty (20) days' written notice to the insureds; (b) that,
notwithstanding any provisions thereof which give the insurer the right to elect to restore damage
in lieu of making a cash settlement, such election may not be exercisable without the approval of
the Trustees and may not be exercisable if in conflict with the terms of the Trust or these By —
Laws; (c) for waiver of subrogation as to any claims against the Trust, the Trustees, the
manager, agents, employees, the Unit Owners and their respective employees, agents and guests;
(d) for waivers of any defense based upon the conduct of any insured; and (e) in substance and
effect that the insurer shall not be entitled to contribution as against any casualty insurance for
which may be purchased separately by Unit Owners.
C. The Trustee or Trustees hereunder designated as Insurance Trustee or Trustees as
aforesaid shall collect and receive all casualty loss insurance proceeds and shall hold, use, apply
and disburse the same in accordance with applicable provisions of the following Section 4 of this
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Article V. With respect to losses which affect portions or elements covered by such insurance of
more than one Unit to different extents, the proceeds relating thereto shall be used, applied and
disbursed by the Trustees in their judgment, in a fair and equitable manner.
D. The Trustees shall also so obtain and maintain, unless the same is not obtainable,
master policies of insurance with respect to the Common Elements for the benefit and protection
of the Trustees and all of the Unit Owners, for: (a) comprehensive public liability; (b)
workmen's compensation and employees Iiability with respect to any manager, agent, or
employee of the Trust; (c) elevator liability and collision; and (d) such other risks as the
Trustees in their discretion deem it appropriate to insure. All such insurance shall be in such
amounts and form as the Trustees shall in their discretion deem appropriate, and shall, insofar as
practicable, contain provisions as above set forth with respect to non -cancellation, waiver of
subrogation, waiver of defense based on conduct of any insured, and non -contribution. Such
insurance shall not cover the liability of any Unit Owner as to claims arising out of incidents
occurring within his own Unit, but shall be the responsibility of each Unit Owner to maintain
public liability insurance therefore. The Trustees may elect to include the managing agent of the
Condominium as a party insured under policies of insurance described in this Paragraph D.
E. The cost of all such insurance obtained and maintained by the Trustees pursuant to the
provisions of this Section 3 shall be a common expense.
Section 4. Rebuilding and Restoration; Improvements.
A. In the event of any casualty loss to the trust property, the Trustees shall determine in
their reasonable discretion whether or not such loss exceeds ten per cent (10%) of the value of
the Condominium immediately prior to the casualty, and shall notify all Unit Owners of such
determination. If such loss as so determined does not exceed ten per cent (10%) of such value,
the Trustees shall proceed, without notice to the Unit Owners, with the necessary repairs,
rebuilding, or restoration. If said casualty loss exceeds ten per cent (10%) of the value of the
Condominium prior to the casualty, and:
(a) If seventy-five per cent (75%) in interest of the Unit Owners do not agree within 120
days after the date of the casualty to proceed with repair or restoration, the Condominium,
including all Units, 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 fined. The net proceeds of a partition sale, together with any common funds including
the proceeds of any insurance, shall be divided in proportion to the Unit Owner's respective
undivided ownership in the Common Elements. Upon such sale, the Condominium shall be
deemed removed from the provisions of Chapter 183A of the Massachusetts General Laws.
(b) If seventy-five per cent (75%) in interest of the Unit Owners agree to proceed with the
necessary repair or restoration, the cost of rebuilding 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 per cent (10%) of the value of the
8
Condominium prior to the casualty, any Unit Owner who did not so agree may apply to the
Superior Court of Barnstable County, on such notice to the Trust as the Court shall direct, for an
order directing the purchase of his Unit by the Trust at the fair market value thereof as approved
by the Court. The cost of any such purchase shall be a common expense.
B. if seventy per cent (75%) or more in interest of the Unit Owners agree to make an
improvement to the Common Elements, the cost of such improvements shall be borne solely by
the Unit Owners so agreeing.
Seventy-five per cent (75%) or more in interest of the Unit Owners may agree to make an
improvement to the Common Elements and assess the cost thereof to all Unit Owners as a
common expense; but if such improvement shall cost in excess of ten per cent (10%) of the then
value of the Condominium, any Unit Owner not so agreeing may apply to the Superior Court of
Barnstable County, on such notice to the Trust as the Court shall direct, for an order directing the
purchase of his Unit by the Trust as fair market value thereof as approved by the Court. The cost
of any such purchase shall be a common expense.
C. Each Unit Owner shall be solely responsible for the maintenance and improvements
to their Unit, and all appurtenant common areas affixed to or serving that Unit, if said common
area and facility is located in the respective Unit Owner's Exclusive Use Area.
D. Any improvement made to either Unit or the Building which results in additional
square footage to a Unit will only be completed once all departments of the Town of Yarmouth
approve of the same, and only once the improving Unit Owner agrees in writing to recalculate its
percentage interest in the common areas and facilities to reflect said improvement. The cost of
amending the Master Deed for this purpose shall be borne solely by the improving Unit Owner,
and said improvement may not occur until such time as said Amendment has been recorded.
Section 5. Rules and Regulations.
The Board of Trustees has adopted the Rules and Regulations set forth in Schedule A
annexed hereto and made a part of this Trust, governing the details of the operation and use of
the Common Elements, and containing such restrictions on and requirements respecting the use
and maintenance of the Units and the Common Elements as are consistent with the provisions of
the Master Deed, and designed to prevent unreasonable interference with the use by the Unit
Owners of their Units and of the Common Elements.
By vote of a majority in number of the Board of Trustees, the Board of Trustees may at
any time and from time to time amend, modify and rescind the Rules and Regulations.
Section 6. Meetings.
A. The Board of Trustees shall meet annually on the date of (and immediately following)
the annual meeting of the Unit Owners, and at such meeting shall elect the Chairman, and
z
Treasurer/Secretary hereinbefore provided for. Other meetings may be called by the Chairman
and in such other manner as the Trustees may establish, provided, however, that written notice of
each meeting, stating the place, day and hour thereof, shall be given at least four (4) days before
such meeting to each member of the Board of Trustees. The two (2) Trustees shall constitute a
quorum at all meetings, and such meetings shall be conducted in accordance with such rules as
the Board of Trustees may adopt.
B. Commencing with the calendar year 2027 there shall be an annual meeting of the Unit
Owners on the last Saturday of August in each year, at 7:30 p.m., at the Condominium premises
or at such other reasonable place and time as may be designated by the Board of Trustees by
written notice given to the Unit Owners at least fourteen (14) days prior to the date so
designated. Special meetings of the Unit Owners may be called by The Board of Trustees or by
the Unit Owners upon the written request of Unit Owners entitled to more than fifty per cent
(50%) of the beneficial interest hereunder. Written notice of any such meeting designating the
place, day and hour thereof shall be given by the Board of Trustees to the Unit Owners at least
fourteen (14) days prior to the date so designated. At the annual meeting of the Unit Owners, the
Board of Trustees shall submit reports of the management and finances of the Condominium.
Whenever at any meeting the Board of Trustees proposes to submit to the Unit Owners any
matter with respect to which approval of or action by the Unit Owners is necessary or
appropriate, the notice of such meeting shall so state and reasonably specify such matter. A
quorum of Unit Owners shall consist of the holders of at least one hundred per cent (100%) of
the beneficial interest hereunder.
Section 7. Notices to Unit Owners.
Every notice to any Unit Owner required under the provisions hereof, 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 a written or printed copy of such notice shall be given by one or more of the
Trustees to such Unit Owner by leaving such notice with him at his residence in the
Condominium or by mailing it, postage prepaid, addressed to such Unit Owner at his address as
it appears upon the records of the Trustees, at least five (5) days prior to the date fixed for the
happening of the matter, thing or event of which such notice is given, or such longer period of
time as may be required by the specific terms of this instrument. Unit Owners may waive notice
by duly executing an appropriate waiver of notice.
Section 8. inspection of Books; Reports to Unit Owners.
Books, accounts and records of the Trustees shall be open to inspection to any one or
more of the Trustees and the Unit Owners at all reasonable times. 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 Unit Owners a report of the operations of the Trustees for such year, which shall
include financial statements in such summary form and only in such detail as the Trustees shall
deem proper. Any person who has been furnished with such report and shall have failed to
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object thereto by notice in writing to the Trustees, given by registered or certified mail within a
period of one (1) month of the date of receipt by him, shall be deemed to have assented thereto.
Section 9. 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 (2) Trustees, or by any
person or persons (who may be one of the Trustees) to whom such power may at any time or
from time to time be designated by not less than a majority of the Trustees.
Section 10. Seal.
The seal of the Trustees, if any, shall be circular in form, bearing the inscription: "Gate
Way Condominium", but such seal may be altered by the Trustees, and the Trustees may, at any
time or from time to time, at their option, adopt a common or wafer seal which shall be valid for
all purposes.
Section 11. Fiscal Year.
The fiscal year of the Trust shall be the calendar year.
Section 12. Maintenance of Units (Interior).
The Unit Owners shall be responsible for the proper maintenance and repair of the
interior of their respective Units. If a majority of the Trustees shall at any time in their
reasonable judgment determine that the interior of a Unit is in such need of maintenance,
painting or repair that the market value of an adjacent Unit or Units is being adversely affected,
or that the condition of a Unit or any fixtures, furnishing, facility or equipment thereof is
hazardous to any Unit or the occupants thereof, the Trustees shall in writing request the Unit
Owner to perform the needed maintenance, painting or repair, or otherwise to correct the
hazardous condition, and in case such work shall not have been commenced within fifteen (15)
days (or such reasonably shorter period in case of emergency, as the Trustees shall determine) of
such request and brought to diligent completion, the Trustees shall be entitled to have access to
the Unit and to have the work performed for the account of such Unit Owner whose Unit is in
need of work, and the cost thereof shall constitute a lien upon such Unit, and such Unit Owner
shall be personally liable therefore, provided that the lien thus created shall be subordinate to
first mortgages of record.
Section 12.1. Maintenance of Units (Exterior)
All maintenance and replacements of and repairs to the common areas and facilities as defined in
the Master Deed, shall be made by the Trustees and shall be charged to each Unit Owner as a
Common Expense, except to the extent that the same are necessitated by the negligence, misuse
or neglect of a Unit Owner, in which case such expense shall be charged solely to such Unit
11
Owner. All maintenance and replacement of and repairs to the Building and to structural parts of
the Building, and the painting and decorating of the exterior doors and exterior window sashes of
the Building shall be made by the Unit Owners and the cost of the same shall be sole obligation
of each of the Unit Owner in which said Unit Owner's Unit is located. In addition, all other
common areas and facilities serving the Building and located within a respective Exclusive Use
Area shall be the sole responsibility of the Unit Owner to whom such Areas are assigned, in the
sole discretion of the Unit Owner.
ARTICLE VI
Rights and Obligations of Third Parties Dealing With the Trustees; Limitation of Liability
Section 1. No purchaser, mortgagee, lender, or other person dealing with the Trustees as
they then appear of record in said Registry of Deed shall be bound to ascertain or inquire further
as to the persons who are then Trustees hereunder or be afTected with any notice, implied or
actual, otherwise than by a certificate thereof, and such record or certificate shall be conclusive
evidence of the personnel of said Trustees and of any changes therein. The receipts of the
Trustees, or any one or more of them, shall be effectual discharges therefrom to the persons
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 the trust property 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
pursuance of any of the provisions or powers herein contained, or as to the regularity of the
resignation or appointment of any Trustee, and any instrument of appointment of a new Trustee
or discharge of a Trustee purporting to be executed by the Trustees, Unit Owners or other
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 relating to such
discharge, resignation or appointment or the occasion thereof.
Section 2. No recourse shall at any time be had 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 property 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 beneficiaries,
present or future, shall be personally liable therefore; provided, however, that nothing herein
contained shall be deemed to limit or impair the liability of the Unit Owners under the provisions
of Section 7 of Article III hereof or under the provisions of said Chapter 183A.
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Section 3. 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 4. This Declaration of Trust and any amendments thereto 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 said Registry of
Deeds 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 property, or any beneficiary hereunder, shall be held to have notice of any
alteration or amendment of this Declaration of Trust, or change of Trustee or Trustees, when the
same shall be recorded with said Registry of Deeds. Any certificate signed by the Trustees in
office at the time, setting forth as facts any matters affecting the Trust, including statements as to
who are the beneficiaries, as to what action has been taken by the beneficiaries, and as to matters
determining the authority of the Trustees to do any act, when duly acknowledged and recorded
with said Registry of Deeds, 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.
ARTICLE VII
Amendments and Termination
Section 1. The Trustees, with the unanimous consent in writing of Unit Owners, may at
any time and from time to time amend, alter, add to, or change this Declaration of Trust in any
manner or to any extent, the Trustees first, however, being duly indemnified to their reasonable
satisfaction against outstanding obligations and liabilities; provided always, however, that no
such amendment, alteration, addition or change shall be valid or effective: (a) according to the
purport of which the percentage of the beneficial interest hereunder of any Unit Owner would be
altered, other than by consent of all of the Unit Owners, or in any manner or to any extent
whatsoever modified or affected so as to be different than the percentage of the individual
interest of such Unit Owner in the Common Elements as set forth in the Master Deed; or (b)
which would render this Trust contrary or inconsistent with any requirements or provisions of
said Chapter 183A. Any amendment, alteration, addition or change pursuant to the foregoing
provisions of this Section shall become effective upon the recording with said Registry of Deeds
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
the Trustees setting forth in full the amendment, alteration, addition, or change, and reciting the
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consent of the Unit Owners herein required 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, 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.
Section 2. The Trust hereby created shall terminate only upon the removal of the
Condominium from the Provisions of Chapter 183A in accordance with the procedure therefore
set forth in Section 19 of said Chapter.
Section 3. Upon the termination of this Trust, the Trustees may, subject to and in
accordance with the provisions of said Chapter 183A, sell and convert into money the whole of
the trust property, or any part or parts 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 Unit Owners according to their respective percentages of beneficial interest, as
shown in Schedule A of the Master Deed. In making any sale under the provisions of this
Section 3, the Trustees shall have the power to sell or vary any contract of sale and 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 distribution of trust property may have passed.
ARTICLE VIII
Sale of Units
Section 1. No Severance of Ownership. No Unit Owner shall execute any deed, mortgage, or
other instrument conveying or mortgaging title to his Unit without including therein the
Appurtenant interests (as hereinafter defined); 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 Appurtenant 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, or as part of a sale, transfer, or
other disposition of such part of the Appurtenant Interests of all Units.
"Appurtenant Interests", as used herein, shall include: (i) the undivided interest of a Unit Owner
in the Common Elements; (ii) the exclusive license of a Unit Owner for one or more parking
spaces (if included in his Unit Deed), and one or more storage sheds (if included in his Unit
Deed).; (iii) the interest of such Unit Owner in any Units theretofore acquired by the Trustees, or
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their designee, on behalf of all Unit Owners, or the Proceeds of the sale or lease thereof, if any;
and (iv) the interest of such Unit Owner in any other assets of the Trust.
Section 2. Financing of Purchase of Units by Trustees. With the prior approval of a majority in
interest of the Unit Owners, the Trustees may acquire Units of the Condominium. Acquisition of
Units by the Trustees may be made from any funds in the hands of the Trustees; or if such funds
are insufficient, the Trustees may levy an assessment against each Unit Owner in Proportion to
his beneficial interest, as a common charge; or the Trustees; in their discretion, may borrow
money to finance the acquisition of such Units, provided, however, that no financing may be
secured by an encumbrance or hypothecation of any property other than the Units with
Appurtenant Interests so to be acquired by the Trustees.
Section 3. Waiver of Right of Partition. In the event that a Unit shall be acquired by the
Trustees, all Unit Owners shall be deemed to have waived all rights of partition with respect to
such Unit or Units as are acquired by the Trustees.
Section 4. Payment of Assessments. No Unit Owner shall convey, mortgage, pledge,
hypothecate, sell, or lease his Unit unless and until he shall have paid in full to the Trustees all
unpaid common charges theretofore assessed by the Trustees against his Unit and until he shall
have satisfied all unpaid liens against such Unit.
ARTICLE IX
Disputes
Any Unit Owner aggrieved by any decision or action of the Trust in the administration of
the Condominium may, within thirty (30) days of the decision or action of the Trust, appoint a
mediator who shall be a licensed Massachusetts mediator with not less than three (3) years
experience as a mediator. With ten (10) days after notice of such appointment, the Trust shall
appoint another such mediator, and the two so chosen shall within ten (10) days thereafter choose
a third such mediator. A majority of such mediators shall be entitled to decide any such matter,
and their decision shall be rendered within thirty (30) days of the appointment of the third
mediator. Such decision, subject to Chapter 251 of the General Laws of Massachusetts, as from
time to time amended, shall be final and conclusive on all persons.
ARTICLE X
Construction and Interpretation
In the construction hereof, whether or not so expressed, words used in the singular or in
the plural, respectively, include both the plural and singular; words denoting males include
females; and words denoting persons include individuals, firms, associations, companies (joint,
stock or otherwise), trusts and corporations; unless a contrary intention is to be inferred from or
required by the subject matter or context. The captions of Articles and Sections are inserted only
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for the convenience of reference and are not to be taken to be any part hereof or to control or
affect the meaning, construction, interpretation, or effect hereof.
All of the trusts, powers, and provisions herein contained shall take effect and be
construed according to the laws of the Commonwealth of Massachusetts.
IN WITNESS WHEREOF, the undersigned has hereunto set their hands and seals on the
day and year first above written.
Michael Kearney q
FT
Linda Kearney
COMMONWEALTH OF MASSACHUSETTS
Barnstable, ss.
On this ._ __ day of , 2026, before me, the undersigned notary public,
personally appeared Michael Kearney and Linda Kearney, proved to me through satisfactory
evidence of identification, namely Massachusetts Driver's Licenses, to be the persons whose
names are signed on the preceding or attached document, and acknowledged to me that they
signed it voluntarily for its stated purpose.
Notary Public
My Commission Expires:
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SEAL HERE
SCHEDULE A
Rules and Regulations
1. No use shall be made of the Common Elements except as permitted by the Board of
Trustees.
2. No offensive activity shall be carried on in the Common Elements, nor shall anything
be done therein, either willfully or negligently, which may be or become an annoyance or
nuisance to the other Unit Owners or occupants. No Unit Owner shall make or permit any
disturbing noises by such Unit Owner or by such Unit Owner's family, servants, employees,
agents, visitors, lessees, and licensees, nor do or permit anything by such persons that will
interfere with the rights, comforts or convenience of other Unit Owners.
3. Nothing shall be done in, on or to the Common Elements which will impair the
structural integrity of the buildings or which would structurally change the buildings without the
prior written consent of the Board of Trustees.
4. No clothes, clotheslines, sheets, blankets, laundry, or any kind of other articles shall be
hung out of a Unit or exposed on any part of the Common Elements. The Common Elements
shall not be obstructed and shall be kept free and clear of all rubbish, debris, and other unsightly
materials. Unit Owners may not erect any structures at the property.
5. Nothing shall be altered or constructed in or removed from the Common Elements
except upon the written consent of the Board of Trustees.
6. No repairing of automobiles shall take place within the Condominium, nor shall
driveways be used for any purpose other than to park motor vehicles and bicycles, excluding
specifically, unregistered vehicles, motorcycles and commercial vehicles, without the prior
written consent of the Board of Trustees. Notwithstanding the foregoing, in cases of emergency,
commercial vehicles may be parked within the Condominium. No Unit Owner shall park more
than two (2) motor vehicles within the Condominium, without the prior written consent of the
Board of Trustees.
. 7. The use of the Common Elements, by Unit Owners, as well as the safety and
maintenance of all personal property of the Unit Owners kept in such areas and in the Units
themselves, shall be the responsibility and at the sole risk of the respective Unit Owners, and
neither the Trustees nor their respective agents, servants, employees, successors or assigns, shall
bear any responsibility therefor.
8. Each Unit Owner assumes responsibility for such Unit Owner's own safety and that of
such Unit Owner's family, guest, agents, servants, employees, licensees and lessees.
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9. Any consent or approval given under these Rules and Regulations may be added to,
amended, or repealed at any time by the Board of Trustees.
10. No unregistered vehicles, including automobiles, motorcycles, boats, recreational
vehicles, ATVs or similar vehicles, may be kept on the Condominium Property or in any
Exclusive Use Areas.
11. No additional freestanding sheds or other accessory structures will be placed on the
Condominium Property or in any Exclusive Use Areas without the prior written consent of 100%
of the Trustees.
12. Fencing along the Exclusive Use Areas which abut another Unit Owner's Exclusive
Use Area is permitted, but only with the prior written consent of 100% of the Trustees, and only
if said fencing consists of a split rail style fence which is no taller than 4 feet, and supplemented
with landscaping and vegetation, which said vegetation will never be permitted to grow higher
than 10 feet tall. Should any installing Unit Owner allow said vegetation to exceed the 10 foot
maximum height, the other Unit Owner, or their employees, contractors or other invitees, is
provided an easement to access the installing Unit Owner's Exclusive Use Area to remedy such
violation. Fencing along other boundaries of the property will be allowed but only with the prior
written consent of 100% of the Trustees. All fencing on the site must be approved by the Town
of Yarmouth prior to installation, and valid building permit must issue for same. All other local
and state approvals which are required must be secured prior to installation.
13. Each Unit, as defined by the Master Deed, may be altered, extended or replaced, but
only with the prior written consent of 100% of the Trustees, and only when such alteration,
extension, and/or replacement has been approved by the Town of Yarmouth, and the Unit Owner
secures all necessary permits and approvals.
Trust.
14. These Rules and Regulations may be amended from time to time as provided in the
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