Potter Pond
Amended and Restated Declaration of Trust
 
Home
History

Important Documents

Management Co., Trustees, & Committees

Potter Pond Directory

Maps & Pictures

2001 AMENDED AND RESTATED DECLARATION OF TRUST
OF
POTTER POND ASSOCIATION

The following is an abbreviated table-of-contents. Button here if you would like to see the full Contents.

Contents

Article I: Definitions

Article II: Name Of Trust

Article III: The Trust And Its Purpose

Section 3.1: Organization of Homeowners
Section 3.2: Entity Created
Article IV: The Trustees
Section 4.1: Number Of Trustees
Section 4.2: Terms Of Trustees
Section 4.3: Vacancies Election Appointment and Acceptance of Trustees
Section 4.4: Trustee Action
Section 4.5: Trustee Meetings; Quorum
Section 4.6: Officers; Committees
Section 4.7: Resignation; Removal
Section 4.8: Bond Or Surety
Section 4.9: Compensation Of Trustees, Officers, And Committee Members
Section 4.10: No Personal Liability
Section 4.11: Trustees, Officers, And Homeowners May Deal With The Condominium
Section 4.12: Indemnification
Article V: Homeowners and the Beneficial Interest in the Trust

Section 5.1: Beneficiaries and The Beneficial Interest
Section 5.2: Beneficial Interest Held By One Person
Section 5.3: Meetings Of Homeowners
Article VI: By-Laws

Section 6.1: Powers And Duties Of Trustees
Section 6.2: Maintenance And Repair Of Homes; Trustee Access to Homes
Section 6.3: Maintenance Repair and Replacement Of Common Areas and Facilities
Section 6.4: Right Of Access
Section 6.5: Common Expenses Profit And Funds
Section 6.6: Insurance
Section 6.7: Rebuilding Restoration And Condemnation
Section 6.8: Improvements To The Homes And Common Elements
Section 6.9: Rules Regulations Restrictions And Requirements
Section 6.10: Violations And Enforcement
Section 6.11: Homeowner And Resident Responsibility
Section 6.12: Enforcement Of Charges Fines Obligations
Section 6.13: Attorney's Fees And Costs
Section 6.14: Inspection Of Books
Section 6.15: Financial Reports To Homeowners
Section 6.16: Fiscal Year
Section 6.17: Checks Notes Drafts And Other Instruments
Section 6.18: Notices To Homeowners
Section 6.19: Information To Be Provided By Homeowners To Trustees And Tenants
Section 6.20: Voting Consents And Action Thereon
Section 6.21: Managing Agent
Section 6.22: Acquisition Of Homes By Trustees
Article VII: Mortgages

Section 7.1: Home Mortgages
Article VIII: Rights And Obligations Of Third Parties Dealing With The Trustees

Section 8.1: Third Parties' Reliance
Section 8.2: Personal Liability Excluded
Section 8.3: All Instruments Subject To Terms Hereof
Section 8.4: Recording
Section 8.5: Certificates Of Incumbency And Address
Article IX: Amendment And Termination

Section 9.1: Amendments To Declaration of Trust
Section 9.2: Termination
Section 9.3: Actions Upon Termination
Article X: Miscellaneous

Section 10.1: Construction Interpretation And Waiver
Section 10.2: Conflicts
Section 10.3: Nondiscrimination
Section 10.4: Abatement and Enjoinment Of Violations By Homeowners


2001 AMENDED AND RESTATED DECLARATION OF TRUST
OF
POTTER POND ASSOCIATION

This 2001 Amended and Restated Declaration of Trust has been enacted by and for Potter Pond Association, the organization of homeowners of Potter Pond, a condominium located in Lexington, Middlesex County, Massachusetts, and established pursuant to Massachusetts General Laws, Chapter 183A, by a certain Master Deed dated December 16, 1980, and recorded with Middlesex (South) District Registry of Deeds in Book 14168, Page 426, as amended. The original Declaration of Trust of Potter Pond Association, dated December 16, 1980, is recorded with Middlesex (South) District Registry of Deeds in Book 14168, Page 448, and has been amended of record by such instruments as are identified in the instrument of amendment to which this 2001 Amended and Restated Declaration of Trust is attached and made a part by reference.

ARTICLE I
DEFINITIONS

All terms which are capitalized shall, unless the context otherwise requires, have the meanings set forth below, and if not set forth below they shall have the same meanings as contained in Chapter 183A of the General Laws of the Commonwealth of Massachusetts.

All terms which are capitalized shall, unless the context otherwise requires, have the meanings set forth below, and if not set forth below they shall have the same meanings as contained in Chapter 183A of the General Laws of the Commonwealth of Massachusetts.

Beneficiaries: The Homeowners of Homes at Potter Pond from time to time.

Beneficial Interest: The beneficial interest of the Beneficiaries in Potter Pond Association, which is divided among the Homeowners of the Condominium in the same percentages as the percentage of undivided interest of each Homeowner in the Common Areas and Facilities as set forth in Schedule B of the Master Deed.

By-Laws: The by-laws of Potter Pond Association which are set forth in Article VI of this trust instrument.

Chapter 183A: Chapter 183A of the General Laws of the Commonwealth of Massachusetts (G.L. c. 183A, § 1, et seq.), as amended from time to time.

Committee Member: A Resident who is appointed by the Trustees to serve on a committee established by the Trustees under this trust instrument.

Common Funds: All funds held by the Organization of Homeowners of the Condominium.

Condominium: Potter Pond, a condominium located in Lexington, Middlesex County, Massachusetts, established by the Master Deed described in this trust instrument.

Declaration of Trust: The declaration of trust creating Potter Pond Association, dated December 16, 1980, and recorded with the Registry in Book 14168, Page 448, as amended.

Fiscal Year: The calendar year ending December 31, unless changed by the Trustees.

Home: A "unit", as defined in Section 1 of Chapter 183A, as amended, and as further described in the Master Deed of Potter Pond, as amended.

Homeowner: A person, persons or entity, or a combination thereof, owning a Home at Potter Pond.

Limited Common Elements: "limited common areas and facilities", as defined in Section 1 of Chapter 183A, as amended, and as further described in the Master Deed of Potter Pond, as amended.

Managing Agent: The manager, as that term is defined in Section 1 of Chapter 183A, and as further described in Article VI, Section 6.21 of this trust instrument.

Master Deed: The master deed, dated December 16, 1980, recorded with the Registry in Book 14168, Page 426, by which the Condominium was established, as amended including by Amendment Number Seven, 1997 Amended and Restated Master Deed of Potter Pond, dated as of December 1, 1997, and recorded with the Registry in Book 27957, Page 354.

Organization of Homeowners: the organization of unit owners of the Condominium.

Premises: The land described in the Master Deed of Potter Pond, as amended, together with the buildings, improvements, and fixtures erected thereon, including the Homes and the Common Elements intended for use in connection therewith, and all easements, rights, and appurtenances belonging thereto, and all other property, personal or mixed, intended for use in connection therewith, all as submitted to the provisions of said Chapter 183A in, by and through the recording of said Master Deed and amendments thereto.

Registry: Middlesex (South) District Registry of Deeds.

Resident: Any natural person, whether or not a Homeowner, who is domiciled at Potter Pond.

Trustees: The trustees of Potter Pond Association and their successor trustees serving as trustees of this Trust, from time to time.

Trust: Potter Pond Association, as established by the Declaration of Trust of Potter Pond dated December 16, 1980, and recorded with the Registry in Book 14168, Page 448, as amended.

Trust Property: All property, real and personal, tangible and intangible, conveyed to or held by the Trustees hereunder.

ARTICLE II
Name Of Trust

The Trust is and shall be known as the POTTER POND ASSOCIATION (sometimes referred to herein as the "Trust"), and under that name, so far as legal, convenient and practicable, all activities shall be carried on by the Trustees and all documents shall be executed by the Trustees.

ARTICLE III
The Trust And Its Purpose

Section 3.1. Organization Of Homeowners. The purpose of the Trust is to serve as the organization of unit owners (referred to herein as the "Organization of Homeowners") of the Condominium pursuant to the provisions of Chapter 183A for the purposes therein and herein set forth. All of the rights and powers in and with respect to the common areas and facilities (the "Common Areas and Facilities" or the "Common Elements") of the Condominium, which are, under the provisions of Chapter 183A, conferred upon or exercisable by the Organization of Homeowners of the Condominium and all Trust Property shall vest in the Trustees as they may from time to time be, in trust, to exercise, manage, administer, and dispose of the same and to receive the income thereof (a) for the benefit of the Homeowners of record from time to time of the Homes of the Condominium according to the allocation of undivided interest in the Common Areas and Facilities (the "Beneficial Interest") set forth in Schedule B of the Master Deed of the Condominium, as amended, and (b) in accordance with the provisions of Chapter 183A.

Section 3.2. Entity Created. It is hereby expressly declared that a trust and not a partnership has been created, and that the Homeowners are beneficiaries of the Trust and not partners or associates nor in any other relation whatsoever between themselves and with respect to the Common Elements and/or Trust Property other than as Homeowners of the Condominium, and hold no relation to the Trustees other than of beneficiaries, with only such rights as are conferred upon them as such beneficiaries, hereunder and under the provisions of Chapter 18.

ARTICLE IV
The Trustees

Section 4.1. Number Of Trustees. At all times, there shall be a Board of Trustees (sometimes referred to herein as the "Board" or the "Board of Trustees") consisting of not less than three (3) nor more than seven (7) natural persons, as shall be determined from time to time by vote of the Homeowners holding not less than fifty-one (51%) percent of the Beneficial Interest, who shall be elected as hereinafter provided. Such natural persons shall be resident Homeowners, except that where title to a Home is held by a fiduciary, such natural person may be the fiduciary, and where a Home is owned by a corporation, such natural person may be an officer or director of such corporation; provided that such fiduciary, officer or director resides in the Home and has a present legal or beneficial ownership interest therein, and, further provided, in the case of a parent or child of a Homeowner, that such parent or child may serve as a Trustee if he or she resides in the Home. No more than one Homeowner of any Home may serve as a Trustee at any one time. Notwithstanding any provision of this Section to the contrary, the Board of Trustees may include, at any one time, one or two Trustees who are Homeowners but not residents, provided that any such Homeowner is (a) a natural person as described in the second sentence of this Section 4.1, and (b) a resident Homeowner at the time he or she is elected as a Trustee.

Section 4.2. Terms Of Trustees. The term of each Trustee shall be for a period of three (3) years from the annual meeting of Homeowners at which such Trustee is elected. Such terms shall be on a staggered basis so that in each year at least one, but not all, of the Trustees' terms will expire.

Section 4.3. Vacancies, Election, Appointment, And Acceptance Of Trustees. If and when the number of Trustees shall become less than seven (7) (or such lesser number as shall be determined by vote provided for in Section 4.1), due to death, disability, removal, or resignation, a vacancy shall be deemed to exist, whereupon a special meeting of the Homeowners shall be duly convened by the Trustees within sixty (60) days of the creation of such vacancy to elect a successor Trustee to complete the unexpired term of the prior Trustee.

If the Homeowners fail to elect a successor Trustee within such sixty (60) day period, the then-remaining Trustees may appoint a successor to fill any such vacancy within the ensuing 30-day period. In the event that the remaining Trustee or Trustees fail to so appoint a successor Trustee, or if there is no remaining Trustee, then such vacancy or vacancies may be filled thereafter, upon the petition therefor of any Homeowner, with notice to all other Homeowners, by the appointment of a successor Trustee by a court of competent jurisdiction. Notwithstanding the foregoing provisions of this paragraph to the contrary, if a vacancy occurs within 120 days of the next annual meeting of Homeowners, the Trustees need not convene a special meeting unless requested to do so by the Homeowners acting in accordance with Section 5.3(B) of this Declaration of Trust, and, unless the Trustees appoint a successor Trustee to fill such vacancy as provided above in this paragraph, the election of a successor Trustee to fill such vacancy shall occur at the next annual meeting of Homeowners.

The expiration of a term shall also create a vacancy, which vacancy, however, shall be filled at the annual meeting of the Homeowners.

At any such meeting of the Homeowners, provided that a quorum is present in person or by proxy, a vacancy shall be filled as follows: the candidate receiving the greatest total percentage of votes of the Homeowners, based on Beneficial Interest, shall be elected as successor Trustee; provided, however, that if more than one Trustee vacancy is to be filled at such meeting, the vacancies shall be filled in descending order of votes received by the candidates, beginning with the candidate receiving the greatest total percentage of votes of the Homeowners, based on Beneficial Interest. Cumulative voting shall not be permitted.

The election or appointment of any Trustee shall become effective upon such election or appointment, whereupon 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 Trustee or Trustees without the necessity of any act of transfer or conveyance. An instrument certifying such election or appointment shall be recorded with the Registry, sworn and subscribed to by a majority of the then Trustees, (1) referencing this Declaration of Trust and the Master Deed; (2) reciting the existence and cause of the vacancy; (3) referencing the election or appointment of the successor Trustee; and (4) containing an acceptance of such election or appointment by the successor Trustee. In the case of appointment by a court, an attested copy of the order may be recorded. Except as provided in Article VIII hereof, the failure or delay in recording said instrument shall not affect the validity of such Trustee's election.

Section 4.4. Trustee Action. In any matter relating to the administration of this Trust and the exercise of the powers herein conferred, the Trustees may act by majority vote at any duly called meeting at which a quorum is present, as defined in Article IV, Section 4.5; provided, however, that in no event shall a majority consist of less than two (2) Trustees, and, if and whenever the number of Trustees shall become less than two (2), the then remaining Trustee, if any, shall have no power or authority to act or to exercise any of the powers conferred under this Declaration of Trust except to elect a new Trustee or Trustees as provided in Article VI, Section 4.3 and/ or to execute a certificate as provided under Article VI, Section 6.5(H). The Trustees may also act without a meeting by instrument signed by a majority of their number or, in circumstances in which a majority of the Trustees determine in the exercise of their discretion that: the matter to be acted upon cannot be deferred to the next regular meeting of the Board, by approval by means of telephone or electronic means of communication. When actions are taken by telephone or electronic means of communication, such actions shall be confirmed in writing at or before the next scheduled meeting of the Board of Trustees and reported in the minutes of the next regular meeting of the Board.

  1. Power To Act When Vacancy Exists. Except as provided above in this Section 4.4 where there is only one Trustee of this Trust, in the even. of any vacancy in the office of Trustee, however caused and for whatever duration, the then remaining or surviving Trustees shall continue to exercise and discharge all of the powers, discretions and duties hereby conferred or imposed upon the Trustees.

Section 4.5. Trustee Meetings; Quorum. The trustees shall meet annually on the date of and immediately following the annual meeting of the Homeowners. At such meeting, the Trustees may elect from their number a Chair, a Treasurer, and a Secretary/ Clerk, and any other officers they deem expedient. The Trustees shall thereafter meet at such regular interval, time and place as determined by them, and specially upon the request of the Chair or of any two Trustees; provided, however, that written notice of each such regular or special meeting setting the place, day, hour, and purpose thereof shall be given prior to the date of such meeting to each Trustee, unless such notice is waived by all Trustees. A majority of the number of Trustees then in office shall constitute a quorum at all meetings, and such meetings shall be conducted in accordance with such rules as the Trustees may adopt. If at any meeting of the Board there shall be less than a quorum present, a majority of those present may adjourn the meeting from time to time. At any adjourned meeting at which a quorum is present, any business which might have been transacted at the meeting originally called, may be transacted without further notice.

  1. Minutes. Accurate minutes of all Trustee meetings shall be taken by a person designated by the Trustees and shall be maintained by the Trustees as part of the records of the Trust.

Section 4.6. Officers; Committees. There shall be from among the Trustees, in addition to such other officers as they may elect from their number, the following officers (collectively referred to as the "Officers") who shall have the following listed duties:

  1. Chair. The Chair shall be the chief executive officer of the Trust. He/she shall preside at all meetings of the Homeowners and of the Trustees. The Chair shall have the power to appoint committees from time to time as he/she may in his/her discretion decide is appropriate to assist in the conduct of the affairs of the Condominium. If the Chair is unable to act at any time, the remaining Trustees shall appoint some other of their number to act in the place of the Chair on an interim basis.
  2. Treasurer. The Treasurer shall have the responsibility, for the Trust's funds and securities and shall the responsible for maintaining full and accurate financial records and books of account showing all receipts and disbursements, and for the preparation of all required financial data. He/she shall be responsible for the deposit of all monies and other valuable effects in the name of the Trust in such depositories as may from time to time be designated by the Trustees.
  3. Secretary/Clerk. The Secretary/Clerk shall take the minutes of all meetings of the Homeowners and of the Trustees; and he/she shall ensure that such books and papers of the Trust shall be properly maintained.

There shall, additionally, be such committees with such duties and responsibilities as designated by the Chair as aforesaid.

Section 4.7. Resignation; Removal. Any Trustee may resign at any time by an instrument in writing, signed and acknowledged in the manner required in Massachusetts for the acknowledgment of deeds and delivered to the remaining Trustees. Such resignation shall take effect upon the recording of such instrument with the Registry, unless specified to be effective at some other time in said instrument. The remaining Trustees, or Trustee, shall forthwith cause said instrument to be duly recorded with the Registry. Upon a failure thereof, or the absence of other Trustees, the resigning Trustee may so record said instrument and shall notify the Homeowners thereof.

Any Trustee may, with or without cause, be removed by a vote of Homeowners holding at least fifty-one percent (51%) of the Beneficial Interest in the Trust at a special meeting duly called therefor and after being afforded the opportunity to be heard. The vacancy so resulting shall be filled in the manner provided in Section 4.3 hereof. Such removal shall become effective upon said vote and a certificate thereof, executed by a majority of the then remaining Trustees in office or, upon a failure thereof, by any five of the Homeowners voting to remove such Trustee, shall be recorded with the Registry.

Section 4.8. Bond Or Surety. No Trustee elected or appointed as hereinbefore provided, whether as original Trustee or as successor to or as substitute for another, shall be obliged to give any bond or surety or other security for the performance of any of his/her duties hereunder; provided, however, that by a vote of Homeowners holding at least fifty-one (51%) percent of the Beneficial Interest in the Trust, any one or more of the Trustees shall be required to give bond in such amount and with such sureties as shall be specified in such vote. All expenses incident to any such bond shall be charged as a Common Expense of the Condominium. The foregoing shall not affect any fidelity coverages hereinafter required under the insurance provisions of this Trust.

Section 4.9. Compensation Of Trustees, Officers And Committee Members. No Trustee, Officer or Committee Member shall receive compensation for serving as such; provided, however, each Trustee, Officer, or Committee Member shall be entitled to reimbursement for all actual and reasonable expenses incurred by him/her in connection with his/her duties on behalf of the Trust, which reimbursement shall constitute a Common Expense.

Section 4.10. No Personal Liability. No Trustee, Officer, or Committee Member shall under any circumstances or in any event be held liable or accountable out of his/her personal assets or estate or be deprived of compensation, if any, by reason of any action taken, suffered or omitted in good faith, or for allowing one or more of the other Trustees, Officers, or Committee Members 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 anything except his/her own personal and willful malfeasance.

Section 4.11. Trustees, Officers, And Homeowners May Deal With The Condominium. No Trustee or Homeowner shall be disqualified by his/her office, or status, from contracting or dealing, directly or indirectly, with the Trustees or with one or more Homeowners as vendor, purchaser or otherwise because of his/her, the Trustees', Officers', or any Homeowner's interest in any corporation, firm, trust, partnership, or other organization connected with such contracting or dealing, nor shall any such dealing, contract or arrangement entered into in respect of this Declaration of Trust in which any Trustee, Officer, or Homeowner shall in any way be interested be avoided nor shall any Trustee, Officer, or Homeowner, 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 Trustees or 00cer's holding office or of the fiduciary relation hereby established, or by reason of such Homeowner's status, provided the Trustee, Officer, or Homeowner shall act in good faith and shall disclose the nature of his interest before the dealing, contract, or arrangement is entered into.

Section 4.12. Indemnification. The Trust shall, to the extent legally permissible, indemnify each of its Trustees, Officers, and Committee Members against all liabilities, costs, and expenses, including, without limitation, liabilities in contract and in tort, and amounts paid in satisfaction of judgments, in compromise of or as fines and penalties, and counsel fees incurred by him/her in connection with the defense or disposition of any action, suit, or other proceeding, whether civil or criminal, in which he/she may be involved or with which he/she may be threatened, while in office, or thereafter, by reason of his/ her be' or having been such a Trustee, Officer, or Committee Member, except with respect to any matter as to which he/she shall have been adjudicated in any proceeding to have acted with personal and willful malfeasance, bad faith, or fraud. The right of indemnification hereby provided shall not be exclusive of or affect any other rights to which any Trustee, Officer, or Committee Member may be entitled herein or by contract or otherwise under applicable law. As used in this Section, the terms "Trustee", "Officer", and "Committee Member" include each such person's heirs, executors, and administrators. Nothing in this Section, however, shall be deemed to limit in any respect the powers granted to the Trustees and Officers in this instrument.

ARTICLE V
Homeowners And The Beneficial Interest In The Trust

Section 5.1. Beneficiaries And The Beneficial Interest. The beneficiaries of this Trust shall be the Homeowners from time to time of Potter Pond. The Beneficial Interest in this Trust shall be divided among the Homeowners in the same percentages as the percentage of undivided interest of the Homeowners in the Common Areas and Facilities as set forth in Schedule B of the Master Deed of the Condominium, as amended.

Section 5.2. Beneficial Interest Held By One Person. The Beneficial Interest appertaining to each Home shall be held and exercised as a unit and not be divided among several Homeowners of any Home. To that end, whenever any of the Homes is owned of record by more than one person, the several Homeowners of such Home shall (a) determine and designate which one of such Homeowners shall be authorized and entitled to cast votes, execute instruments, and otherwise exercise the rights appertaining to such Home hereunder, and (b) notify the Trustees of such designation by a notice in writing signed and acknowledged by all of the Homeowners of record of such Home. Any such designation shall take effect upon receipt thereof by the Trustees and may be changed at any time and from time to time by notice as aforesaid. In the absence of any such notice of designation, the Trustees may designate any one such Homeowner for these purposes. For Homes to which title is held by a fiduciary, the fiduciary shall be the designated individual. For Homes to which title is held by a corporation, a duly authorized officer or director of such corporation shall be the designee.

Section 5.3. Meetings Of Homeowners. Meetings of the Homeowners shall be held as hereafter provided:

  1. Annual Meeting. There shall be an annual meeting of Homeowners held on a weekday prior to April 30"' in each year, at such reasonable place, date and time as may be designated by the Trustees (the "Annual Meeting") in the written notice thereof given by the Trustees to the Homeowners. If that day is a legal holiday, the meeting shall be held on the next succeeding weekday. The Trustees shall give written notice thereof to the Homeowners at least seven (7) days prior to said date, which notice shall include an agenda and a full description of all matters to be voted upon, if any. At the Annual Meeting, the Trustees shall submit reports of the management and finances of the Condominium, conduct elections as are necessary, and conduct such other business as is proper.
  2. Special Meetings. Special meetings of the Homeowners may be called at any time by the Trustees and shall be called by them upon the written request of Homeowners holding at least thirty-three and one-third percent (33 1/3%) of the Beneficial Interest ("Special Meeting"). A request for such a Special Meeting by such Homeowners shall be accompanied by an agenda and, if applicable, the text of any proposed amendment to the Condominium's documents. Written notice of any Special Meeting designating the place, day, and hour thereof, together with a full description of the matter(s) to be considered and/or voted upon, shall be given by the Trustees to the Homeowners at least seven (7) days prior to the date so designated.
  3. Voting. Each Home shall have one vote, which vote shall be weighted in relation to the votes of other Homes in accordance with such Home's percentage interest in the Common Areas and Facilities of the Condominium, as set forth in the Master Deed, as the same may be amended from time to time. Unless otherwise specifically provided in the Master Deed or this Declaration of Trust, or otherwise required by law, the vote of a majority of the Beneficial Interest of the Homeowners (weighted as described above) present in person or by proxy at a duly convened meeting of the Homeowners at which a quorum is present ("Majority Vote"), shall be binding as to those matters within the purview of the Homeowners.
  4. Quorum. Homeowners holding a majority of the Beneficial Interest hereunder, whether in person or by proxy, shall constitute a quorum for the conduct of business at meetings of the Homeowners, including the Annual Meeting.
  5. Proxies. A Homeowner may grant to any natural person, upon a form specified by the Trustees, his/her proxy to vote and/or attend meetings of the Homeowners. This right to grant proxies shall in no manner vitiate the provision contained in Section 5.2 of this Article V, where a Home is owned of record by more than one person. The Trustees, by Rule and Regulation, may establish and modify procedures for the use of proxies.
  6. Order Of Business. The order of business at all meetings of the Homeowners shall be as determined by the presiding officer.
  7. Minutes. Accurate minutes of all Homeowner meetings shall be taken by a person designated by the Trustees and shall be maintained as part of the records of the Trust.
  8. Text Of Proposed Amendment. At any meeting of the Homeowners at which a proposed amendment to the Condominium's documents (e.g., Master Deed and Declaration of Trust) is to be considered, the notice of such meeting shall include the full text of such proposed amendment.

ARTICLE VI
By-Laws

The provisions of this Article VI shall constitute the By-Laws (the "By-Laws") of this Trust and the Organization of Homeowners established by the Declaration of Trust and shall be applicable to the Premises of the Condominium, the Trust Property and to -the use and occupancy thereof. The provisions of these By-Laws shall automatically become applicable to real property which may be added to the Condominium upon the recording of an amendment to the Master Deed submitting such additional real property to the provisions of Chapter 183A.

All present and future Homeowners, mortgagees, lessees, and occupants of Homes and their employees, and any other persons who may use the facilities of the Condominium and/or the Premises and/or the Trust Property in any manner, are subject to these By-Laws, this Declaration of Trust, the Master Deed, the Rules and Regulations promulgated hereunder, and all covenants, agreements, restrictions, conditions, easements and declarations of record (the "Title Conditions"). The acceptance of a deed or conveyance or the entering into of a lease or the act of occupancy of a Home shall constitute an agreement that these By-Laws, this Declaration of Trust, the provisions of the Master Deed, and the Rules and Regulations, as they may be amended from time to time, and the Title Conditions are accepted, ratified and will be complied with.

Section 6.1. Powers And Duties Of Trustees. The Trustees shall, subject to all provisions of applicable laws, the Master Deed and this Declaration of Trust, including these By-Laws, have the absolute control and management of the Premises (excluding the Homes) and the absolute control, management, and disposition of the Trust Property as if they were the absolute owners thereof and shall have all of the powers necessary for the administration of the affairs of the Condominium and may do all such acts and things in connection therewith. The powers and duties of the Trustees shall include, but shall not be limited to, the following, all of which shall be exercised subject to the provisions hereof:

  1. Operating, caring for, keeping up, managing, leasing, maintaining, and otherwise dealing with the Common Areas and Facilities of the Condominium or any part thereof.
  2. Owning, conveying, encumbering, leasing, and otherwise dealing with Homes conveyed to or purchased by them as a result of enforcement of the lien for Common Expenses, in actions under Chapter 183A, Sections 17 and 18, or otherwise.
  3. Conducting litigation on behalf of the Homeowners and defending litigation as to any course of action involving the Common Areas and Facilities or arising out of the enforcement of this Declaration of Trust, these By-Laws, any and all Rules and Regulations promulgated hereunder, the Master Deed, and restrictions in the Home deeds.
  4. Determining and budgeting of the Common Expenses required for the affairs of the Condominium and the Trust, including, without limitation, the operation and maintenance of the Premises.
  5. Collecting assessments of Common Expenses from the Homeowners.
  6. Employing and dismissing personnel necessary for the maintenance and operation of the Common Areas and Facilities.
  7. Opening and utilizing bank accounts on behalf of the Trust and Designating the signatories required therefor.
  8. Obtaining of insurance of all types and in such coverage amounts as may be permitted to, or required of, the Trustees by or pursuant to the provisions of this Declaration of Trust, the Master Deed, and/or applicable law.
  9. Making repairs, additions, and improvements to, or alterations or restoration of, the Premises, in accordance with the other provisions of this Declaration of Trust.
  10. Incurring obligations and paying, compromising or adjusting all obligations incurred and rights acquired in the administration of the Trust.
  11. Adopting and amending rules and regulations covering the details of the operation and use of the Common Areas and Facilities, the administration of the Condominium as contemplated by the Master Deed and this Declaration of Trust, and in the interpretation thereof.
  12. Employing, appointing, and removing such agents, managers, officers, accountants, brokers, engineers, architects, consultants, employees, and assistants, and counsel (which counsel may be a firm of which one or more of the Trustees are members) as they shall deem advisable, and defining their respective duties and fixing and paying their compensation, and the Trustees shall not be answerable for the acts and defaults of any such person. The Trustees may delegate to any such agent, manager, officer, accountant, broker, engineer, architect, consultant, employee, assistant, or counsel any or all of their powers (including discretionary powers, except that the power to join in amending, altering, adding to, terminating, or changing this Declaration of Trust and the Trust shall not be delegated), all for such times and purposes as they shall seem proper.
  13. Granting, accepting, modifying, and amending permits, licenses, concessions, easements and/or leases over, under, through and/or to the Common Elements for utilities, roads, parking, and/or all other purposes reasonably necessary and/or beneficial, useful for, and/or to the proper maintenance and/or operation of the Condominium and/or the convenience of the Homeowners, and for all such purposes as may be permitted time to time by the provisions of Chapter 183A; provided, however, that the exercise of such power shall be subject to such limitations and requirements as may be set forth in Chapter 183A from time to time.
  14. Altering the layout, location, nature, and/or use of any of the Common Elements, making installations therein and moving and removing the same, subject, however, to a Homeowner's rights to use any appurtenance to his/her Home as specified in the Master Deed.
  15. Enforcing obligations the Homeowners, including, but not limited to, the levying of general and special assessments for Common Expenses and the providing of remedies for failure to pay such assessments, levying reasonable fines, and attorney's fees, costs, and expenses against the Homeowners and/or residents for violations by the Homeowners, or persons for whom they are responsible, of the Rules and Regulations or of the provisions of this Trust, these By-Laws, and/0r the Master Deed, and in the case of persistent violations of the Rules and Regulations or of this Trust, these By-Laws, or the Master Deed by them or persons f or whom they are responsible, requiring such Homeowner or resident to post a bond to secure adherence thereto.
  16. Investing and revinvesting the funds of the Condominium, or any part or parts thereof, and from time to time and as often as they shall see fit to change investments, including power to invest in all types of securities, and other property, of whatsoever nature and however denominated, all to such extent as to them shall seem proper, and without liability for loss, even though. such property or such investment shall be of a character or in an amount not customarily considered proper for the investment of such funds, or which does or may not produce income; and/ or retaining Trust Property, or anypart(s) thereof, in the same form of investment in which received or acquired by them so far and so long as they shall think fit, without any loss resulting therefrom.
  17. Selling, assigning, conveying, transferring, and/ or exchanging and otherwise disposing of Trust Property or any interest therein, but not the whole thereof, free and discharged of any and all trusts at public or private sale, to any person or persons, for cash or on credit, and in such manner, upon such restrictions, stipulations, agreements, reservations, and terms, and for such consideration, as they shall deem proper, including the power to take back mortgages to secure the whole or any part of the purchase price of any of the Trust Property sold, conveyed or transferred by them, and to execute and deliver any deed or other instrument in connection with the foregoing; and otherwise dealing with or entering into any arrangement for the use or occupation of the Trust Property, or any part or parts thereof, including, without thereby limiting the generality of the foregoing, leases (including leasing of parking spaces), subleases, easements, licenses, or concessions, upon such terms and conditions and with such stipulations and agreements as they shall deem desirable even if the same extend beyond the possible duration of this Trust.
  18. Purchasing and otherwise acquiring any real or personal property, including, without limitation purchasing or otherwise acquiring title to, and renting, leasing, or hiring from others for terms which may extend beyond the termination of this Trust, any property or rights to property, real or personal, and owning, managing, using, and holding such property and such rights.
  19. Borrowing money and mortgaging or pledging all or any part of the Trust Property, and/or the Condominium's funds, and issuing bonds, notes, or other evidence of indebtedness.
  20. Incurring such liabilities, obligations, and expenses, and paying from the principal or the income of the Condominium's funds all such sums, as they shall deem necessary or proper, for the furtherance of the purposes of the Trust.
  21. Determining as to all sums of money and other things of value received by them, whether and to what extent the same shall be deemed to be and shall be accounted for as principal or as income, interest, late charges, attorney's fees, fines, costs, and/or expenses, and as to all charges or expenses paid by them, whether and to what extent the same shall be charged against principal or against interest, late charges, attorney's fees, fines, costs, and/or expenses, including, without hereby limiting the generality of the foregoing power, to apportion any receipt or expense between principal income, interest, late charges, attorney's fees, fines, costs, and/or expenses, and the power to determine what portion, if any, of the actual income received upon any asset purchased or acquired at a premium or any wasting investment shall be added to principal to prevent a diminution thereof upon the maturity or exhaustion of such asset or investment.
  22. Granting to or designating for any Homeowner the right to use, whether exclusively or in common with one or more other Homeowners, any Limited Common Elements, whether or not provided for in the Master Deed, upon such terms as deemed appropriate by the Trustees; provided that at the time of such grant or designation the Trustees are permitted to do so by the provisions of Chapter 183A, and provided further that the exercise of such power shall be subject to such limitations thereon, and requirements for the exercise thereof, as may be set forth in Chapter 183A at the time of such grant or designation.
  23. Purchasing of Homes at foreclosure or other judicial sales in the name of the Condominium or its nominee, corporate or otherwise, on behalf of all Homeowners.
  24. Organizing corporations or trusts to act as nominees of the Condominium in acquiring title to or leasing of Homes on behalf of all Homeowners; and voting in such manner as they shall think fit any or all shares of any corporation or trust which shall be held as Trust Property, and for that purposes to give proxies to any person or persons or to one or more of their number to vote, waive any notice, or otherwise act in respect to any such shares.
  25. Adding land to the Common Elements and/or withdrawing any portion of the Common Elements of the Condominium upon which, at the time of such withdrawal, no Home has been added to the Condominium in accordance with the Master Deed; provided that at the time of any such action the Trustees are permitted to do so by the provisions of Chapter 183A, and provided further that the exercise of such power shall be subject to such limitations thereon, and requirements for the exercise thereof, as may be set forth in Chapter 183A at the time of the exercise of such power.
  26. Entering into and having such access to Homes and Limited Common Elements reserved to Homes in the Condominium as shall be reasonably necessary to the performance and exercise of the duties, obligations, rights, and powers of the Trustees hereunder.
  27. Exercising all such powers permitted to the Trustees by the provisions of Chapter 183A, as the same may be amended from time to time, subject to such limitations and/or requirements as may be set forth in said Chapter 183A.
  28. Executing any and all instruments incidental or necessary to carry out any of the foregoing powers.
  29. Generally, in all matters not herein otherwise specified, controlling, managing and disposing of the Trust Property, controlling, and managing the Premises (excluding the Homes), as if the Trustees were the absolute owners thereof and doing any and all acts suitable, convenient or proper for the accomplishment of any of the purposes of this Trust or incidental to the powers granted herein or in Chapter 183A, including the execution of any instruments, which by their performance thereof shall be shown to be in their judgment for the best interest of the Condominium and its Homeowners.

Section 6.2. Maintenance And Repair Of Homes; Trustee Access To Homes. Except to the extent hereinafter provided, the Homeowners shall be individually responsible, at their own cost or expense, for the proper maintenance, replacement and repair of (i) their respective Homes, as defined and described in the Master Deed, as amended, including, without limitation, in Section 5B thereof; (ii) such facilities, fixtures, and other elements which constitute part of their respective Homes as provided in the Master Deed, as amended, including, without limitation, in Section 6C thereof; (iii) the following facilities, fixtures, and elements located in a building and exclusively serving their respective Homes: the plumbing and sanitary waste fixtures and fixtures for water and other utilities, the electric fixtures and outlets, all other utility fixtures, and all wires, pipes, drains, ducts, and/or other conduits for water, sewerage, electric power and light, telephone, and any other utility services; and heat pumps and/or heating and/ or air conditioning units located in or outside of a building and exclusively serving their respective Homes; and (iv) the Limited Common Elements of their Homes including, without limitation, as follows:

  1. the porches, decks, terraces, and patios, provided for in Section 5C of the Master Deed, as amended, and Homeowner fences, provided, however that the painting or staining of such porches, decks, terraces, and fences shall be undertaken by the Trust and shall be charged to the Homeowner of each such Home having the exclusive use thereof as an assessment of Common Expenses applicable solely to such Home (which assessment(s) as to one or more but fewer than all of the Homes are sometimes referred to in this instrument as a "Limited Common Element Assessment");
  2. The free-standing garage spaces and the following elements of free standing garages which provide access to a Homeowner's free standing garage space, as such garage spaces are provided for in Section 5E of the Master Deed, as amended: the garage door and garage door frame; and the garage door opening mechanism in its entirety, whether electronic, mechanical or otherwise, and including all parts thereof, all remote controls and keypads for its operation, and all equipment and appurtenances thereto; provided, further, that (i) the maintenance, repair, and/or replacement of the windows (including window sills and frames) in a free standing garage shall be undertaken by or for the Trust, at times and to the extent determined by the Trustees in the exercise of their discretion, and the cost thereof shall be assessed proportionally to the Homeowners having free standing garage spaces in such free standing garage as a Limited Common Element Assessment, and (ii) the painting or staining of the exterior surfaces of such garages and garage doors shall be undertaken by the Trust, at times and to the extent determined by the Trustees in the exercise of their discretion, as a Common Expense of the Trust (except that the painting or staining of a garage door at the time of replacement of an existing garage door shall be undertaken by and at the expense of the Homeowner having the use thereof, using materials and colors approved by the Trustees);
  3. the exclusive use yard areas provided for in Section 5C of the Master Deed, as amended, including, without limitation, the replacement of dead bushes and trees located in such yard areas; provided, however, that the trimming of bushes and trees in such exclusive use yard areas shall be undertaken by the Trust at times and to the extent determined by the Trustees, in the exercise of their discretion, as a Common Expense of the Trust;
  4. the attached garages, in their entirety, in which a Homeowner has one or more attached garage spaces, as such garages and spaces are provided for in Section 5D of the Master Deed, as amended; provided, however, that the painting or staining of the exterior surfaces of such garages and garage doors shall be undertaken by the Trust at times and to the extent determined by the Trustees in the exercise of their discretion as a Common Expense of the Trust (except that the painting or staining of a garage door at the time of replacement of an existing garage door shall be undertaken by and at the expense of the Homeowner having the use thereof, using materials and colors approved by the Trustees).

Any Limited Common Element Assessment assessed pursuant hereto shall be due upon demand and shall be enforceable in the same manner and to the same extent as other assessments of Common Expenses as to that Home.

For purposes of this Section 6.2, the term "Homeowner fences" shall mean a fence or fences installed upon the Common Elements (including upon any Limited Common Elements) by a Homeowner at such Homeowner's expense with the approval of the Trustees.

Notwithstanding any provision of this Section 6.2 to the contrary, the painting or staining of the exterior frames and trim of exterior doors, windows, and skylights of each Home shall be undertaken by the Trust, at times determined by the Trustees in the exercise of their discretion, as a Common Expense of the Trust.

Except to the extent covered by the Trust's master casualty insurance, each Homeowner shall be responsible for any and all damage to any and all other Homes and/ or the Common Elements caused by his/ her failure to satisfy the foregoing obligations, including all costs, charges, attorneys' fees, fines, and expenses incurred by the Trust.

If the Trustees shall at any time in their reasonable judgment determine that a Home or any part thereof, or a Home's Limited Common Elements, is in such need of maintenance or repair that the market value of one or more other Homes is being adversely affected, or that the condition of a Home or any part thereof, or any fixtures, furnishings, facilities, or equipment therein or exclusively serving such Home, or a Home's Limited Common Elements, is hazardous to any Home or the occupants thereof and/or adversely affects any other Home and/or the Common Areas and Facilities (including, without limitation, as to appearance) and/or the Common Expenses, the Trustees shall request, in writing, the Homeowner thereof to perform the needed maintenance, repair, replacement, and/or other work and/or to correct the relevant condition and/or its cause. In such case as action thereon shall not have been commenced within the time as may be reasonably set by the Trustees and thereafter diligently brought to completion, the Trustees shall be entitled to have such work performed and to assess the cost or expense thereof to such Homeowner whose Home and/or Limited Common Elements is in need thereof and to enter upon and have access to such Home and/or such Limited Common Elements for those purposes. Furthermore, in the case of an emergency which necessitates immediate action and the Homeowner is unavailable or fails to take immediate action, the Trustees may proceed hereunder without delay. All costs and expenses incurred by the Trustees pursuant to the provisions of this paragraph, including, but not limited to, attorney's fees as are incurred by the Trustees in connection with the exercise and enforcement of such provisions, shall constitute an obligation of the applicable Homeowner and shall be considered a common expense attributable to such Home and shall be enforceable as a Common Expense assessment under this Declaration of Trust and under the applicable provisions of the Chapter 183A. The Trustees may in their discretion impose a fine upon a Homeowner who, in the Trustees' judgment, unreasonably fails to comply with a request made by the Trustees hereunder. The foregoing provisions of this paragraph shall apply to a Home's Limited Common Elements, to the extent the Homeowner is responsible for the maintenance, repair, replacement, and/or condition thereof under the applicable provisions of this Section 6.2.

Should it be necessary that any part of a Home, personal property of a Homeowner, and/or any part of the Limited Common Elements appurtenant to a Home, be required to be removed for the purpose of performing such work, or for the purpose of the Trustees performing work upon the Common Elements, such Homeowner shall promptly comply with such request by the Trustees. Should such Homeowner fail to so comply, or in the case of emergency, the Trustees may remove and store such part and/or property for the account of the Homeowner, the cost of which, including, but not limited to, attorney's fees, fines, and expenses, shall constitute an obligation of the applicable Homeowner and shall be considered a common expense attributable to such Home and shall be enforceable as a common expense assessment under this Declaration of Trust and under the applicable provisions Chapter 183A. Such removal and storage shall be reasonable in manner, extent and terms.

To the extent any provision of this Section 6.2 provides for the Trustees to maintain, repair and/or replace any of the Limited Common Elements, the Trustees may exercise their discretion regarding any such matter, including as to whether such is required and, if so, as to the nature, scope, extent, quality, and timing thereof, and, in doing so, shall be guided by standards of business judgment.

Notwithstanding any obligations of the Trustees under this Section 6.2, each Homeowner shall be and remain responsible for keeping such Limited Common Elements in a state of cleanliness.

All work undertaken by or for a Homeowner pursuant to the provisions of this Section 6.2 shall comply with the architectural integrity provisions contained in Section 12D of the Master Deed and the provisions of Section 6.8(B) of this Article VI.

Section 6.3. Maintenance, Repair, And Replacement Of Common Areas And Facilities. Except as stated in the Master Deed or in Section 6.2 of this Article VI, the Trustees shall be responsible to arrange for the maintenance, repair, and replacement of the Common Areas and Facilities of the Condominium, and such other portions of the Condominium as may be herein specified, when the need for same has been brought to their attention, subject to the provisions of Section 6.7 of this Article VI with respect to repairs, and/or replacement necessitated because of casualty loss. Such maintenance, repair, and/or replacement of the Common Areas and Facilities may be done through any Managing Agent appointed pursuant to Section 6.21 of this Article VI. The Trustees and/or their Managing Agent appointed as aforesaid, may exercise their discretion regarding the maintenance, repair, and/or replacement of the Common Elements, including as to whether such is required and, if so, as to the nature, scope, extent, quality, and timing thereof, and, in doing so, shall be guided by standards of business judgment. Any two Trustees or such Managing Agent, or any others who may be so designated by the Trustees, may approve payment of vouchers for such work, and the expenses of such maintenance, repair and/or replacement shall be assessed to the Homeowners as Common Expenses of the Condominium at such times and in such amounts as provided in Section 6.5 of this Article VI; provided however, that such maintenance, repair, and/or replacement as may be necessitated by the negligence, misuse, or neglect of a Homeowner, his family, agents, employees, invitees, lessees, tenants, licensees, pets, or others upon the Premises at the Homeowner's behest, whether directly or by virtue of a Homeowner's failure to properly maintain, repair, or replace the Home, components thereof, or such Home's Limited Common Elements, including all charges, fines, attorney's fees, costs, and expenses, shall be charged to such Homeowner, shall constitute an obligation of such Homeowner, shall be considered a Common Expense attributable to such Home, and shall be enforceable as a Common Expense assessment under this Declaration of Trust and under the applicable provisions of Chapter 183A, except to the extent such is covered by the Trust's master casualty policy.

  1. Notice Of Person Responsible For Maintenance. The Trustees shall provide every Homeowner with the name, address, and telephone number of the person, firm or entity responsible for the maintenance of the Common Elements.

Section 6.4. Right Of Access. The Trustees or any other person authorized by the Trustees, shall have a right of access to any Home and/or Common Elements located within a Home including, without limitation such Home's Limited Common Elements, for the purpose of making inspections, or for the purpose of correcting any conditions originating in the Home and/or said Common Elements, or threatening another Home or the Common Elements, or for any other purpose reasonably necessary for the proper maintenance or operation of the Condominium, or for any other purpose as herein provided for which access to a Home and/or said Common Elements is necessary; provided, however, that such entry is made after advanced notice and that any such entry is at a time reasonably convenient to the Homeowner. In case of an emergency or in such case as a Homeowner fails to cooperate with the Trustees after notice as aforesaid, such right of entry shall be immediate, and without notice where such is impractical.

Section 6.5. Common Expenses, Profits, And Funds. The Homeowners shall be liable for Common Expenses and entitled to common profits of the Condominium in proportion to their respective percentages of the Beneficial Interest. The Trustees may at any time or times, as they in their sole discretion may determine, distribute common profits and/or surplus accumulations among the Homeowners in such proportions.

  1. Reserve Funds. The Trustees shall establish and maintain a separate and segregated reserve fund to be used for the purposes hereinafter specified. The Trustees shall set aside from the regular monthly payments of Common Expenses an amount adequate and appropriate to provide a reserve for the periodic repair and/or replacement of the Common Elements and other capital purposes and may, to the extent consistent with these purposes, use the funds so set aside for the reduction of indebtedness or other lawful capital purpose, or subject to the provisions of these ByLaws and the provisions of Chapter 183A, Section 17 and/or 18, for the repair, replacement, rebuilding, restoration, or improvement of the Common Areas and Facilities. Such reserves shall be maintained in one or more separate and segregated accounts and the funds so set aside, and any interest thereon, shall not be deemed common profits available for distribution.

    To assist them in determining the adequacy of such reserves , the Trustees may periodically engage an appropriate professional to undertake a capital reserve study, and/or to update one previously undertaken, and based thereon establish an appropriate policy to fund such capital expense needs as therein determined. Any cost or expense incurred by the Trustees hereunder shall be a common expense.

  2. Determination Of Common Expenses And Fixing Of Common Expense Assessments. At least thirty (30) days prior to the commencement of each fiscal year of this Trust, the Trustees shall prepare a budget for the Condominium by establishing the Common Expenses expected to be incurred during such fiscal year, together with a reasonable provision for contingencies and reserves as referred to above, and after taking into account any undistributed common profits from prior years (reserves excepted), shall determine the assessment to be made for such fiscal year (referred to in this Declaration of Trust as "Common Expenses"). The Common Expenses shall include, but in no way be limited to, all such amounts as the Trustees may deem proper for the operation and maintenance of the Condominium, including, without limitation, the cost of all insurance premiums on all policies of insurance required to be or which have been obtained pursuant to the provisions of this Declaration of Trust, an amount for the reserve funds and an amount to make up for any deficit in the Common Expenses for any prior year. The Common Expenses may also include such amounts as may be required for the purchase or lease by the Trustees, on behalf of all Homeowners, pursuant to the terms of this Declaration of Trust, of any Home which is to be sold at foreclosure or other judicial sale, or otherwise.

    The Trustees shall render to the Homeowners at least thirty (30) days prior to the beginning of the Trust's fiscal year, a copy of the budget and a statement of such Homeowner's share of the assessment of Common Expenses for such fiscal year, set according to his/her/their percentage of Beneficial Interest. The amount shown on the statement accompanying the budget shall, unless otherwise provided therein, be due and payable monthly, on the first day of each month, as described below in Section 6.5(C) of this Article VI. In the event that the budget and the said statement of each Homeowner's share of the assessment of Common Expenses for such fiscal year are not issued by the beginning of the fiscal year, each Homeowner shall pay monthly Common Expenses in the same amount as in the immediately preceding fiscal year, until such time as the said budget and statement are issued. In the event that the Trustees shall determine at any time 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, or in the event that the Trustees shall determine that it is advisable to establish a larger reserve or other fund for projected capital or other expenditures, or otherwise, the Trustees may make one or more supplemental assessments (each referred to in this Declaration of Trust as a "Special Assessment") and render such statements, with a written explanation for such assessment, as they may deem necessary therefor in the manner aforesaid. The amount shown in the statements regarding a Special Assessment shall be payable on the first day of the month following the rendering of such statements, unless otherwise provided by the Trustees in such statements.

  3. Payment And Collection Of Common Expense Assessments. The Trustees shall, so far as reasonably possible, provide for payment of the annual assessment of Common Expenses in advance in monthly, substantially equal installments, which shall be due upon the first day of each month; provided, however, that for any fiscal year, the Trustees may provide for such other periodic payment as in their discretion they may determine, and shall notify the Homeowners thereof when rendering the statement for that fiscal year in accordance with the applicable provisions of Section 6.5.(F) of this Article VI. The amount of each such payment, together with late charges as may be reasonably imposed by the Trustees, attorney's fees, fines, and interest on the assessment at the rate of one and one-half percent (1 1/2%) per month, if that amount is not paid when due, shall constitute a lien on the Home of the Homeowner assessed and the personal obligation of the Homeowner, all pursuant to provisions of Chapter 183A, Section 6. The Trustees shall take prompt action to collect any assessments of Common Expenses due from any Homeowner which remains unpaid. The Trustees also may prohibit the delinquent Homeowner, or persons occupying his/her Home, from using any of the amenities of the Condominium, if any, not necessary to the use of the Home. To the extent a Homeowner may be persistently delinquent in the timely payment of Common Expenses due, as the Trustees in their sole discretion may determine, the Trustees may require such Homeowner to pay his or her full Common Expense assessment due for that fiscal year in one lump sum rather than on a monthly basis.

    All obligations of, and charges to, a Homeowner and such Homeowner's Home shall for the purposes hereof be deemed a Common Expense attributable to such Home and the payment thereof shall be enforceable as herein provided.

  4. Payment Of Common Expense Assessments Subsequent To Transfer. No Homeowner shall be liable for the payment of any part of the Common Expenses assessed against his Home subsequent to a sale, transfer or other conveyance by him/ her of such Home. A purchaser of a Home shall not be personally liable for the payment of Common Expenses assessed and unpaid against such Home prior to the acquisition by him/her of such Home unless such purchaser has agreed to assume such obligation. This provision shall not, however, affect the statutory lien on such Home for such unpaid Common Expenses. Except as provided in Chapter 183A, Section 6, a purchaser of a Home at a foreclosure sale of such Home by a first mortgagee, or any first mortgagee who comes into possession of the Home pursuant to the remedies provided in the mortgage, foreclosure of the mortgage, or deed (or assignment) in lieu of foreclosure, shall take the property free of any claims and/or liens for unpaid assessments or charges against the mortgaged Home which accrue prior to the time such holder comes into possession of the Home.
  5. Default In Payment Of Common Expense Assessments. In the event of default by any Homeowner in paying to the Trustees the Common Expense assessments attributable to his/her Home, such Homeowner shall be obligated to pay all expenses, including attorney's fees, fines, late charges, and interest incurred by the Trustees in any proceeding brought to collect such unpaid Common Expenses, irrespective of the amount so unpaid. The Trustees shall have the right and duty to attempt to recover such unpaid Common Expenses, irrespective of the amount so unpaid, together with late charges, interest thereon, fines and the expenses of proceeding, including attorney's fees, in an action to recover the same brought against such Homeowner, or by foreclosure of the lien on such Home, or in any proceeding wherein the Homeowner seeks to avoid payment of the Common Expenses due, all such constituting a lien as provided Chapter 183A, Section 6. In furtherance hereof and to the extent permitted by law, a defaulting Homeowner hereby waives any argument upon such a proceeding that the expenses thereof, including attorney's fees, are unreasonable and/or excessive when considered in the light of the amount so unpaid. A Homeowner shall, upon any action brought by the Trustees to collect unpaid Common Expenses, have no right to make any claims or defense of off-set.

    In such event as the Home as to which Common Expenses are in arrears is leased, rented or let, and upon compliance by the Trustees with the applicable provisions of Chapter 183A, Section 6, the Trustees shall be entitled to require the lessee or tenant of such Home to pay the rent due therefore directly to the Trustees until such time as the arrearage, late fees, interest, costs, and expenses are fully paid and, upon a failure thereof, the Trustees shall be entitled to an order of a court of competent jurisdiction so requiring. This right shall be in addition to any other remedy herein or by law provided to the Trustees or to the Trust.

    After a successful action brought by the Trustees to foreclose a lien on a Home because of unpaid Common Expenses, a Homeowner remaining in his Home for any period of time thereafter shall be required to pay a reasonable fee for the use and occupancy of his Home.

    The Trustees acting on behalf of all Homeowners, shall have the power to purchase a Home at the lien foreclosure sale and to acquire, hold, lease, mortgage (but not to vote the votes appurtenant thereto), convey, or otherwise deal with the same.

    A suit to recover a money judgment for unpaid Common Expenses shall be maintainable without foreclosing or waiving the lien securing the same, and may be brought simultaneously with action to so establish and foreclose upon said lien.

  6. Application of Common Funds. The Trustees shall expend Common Funds only for Common Expenses and other purposes permitted hereby and by the provisions of Chapter 183A.
  7. Notice Of Default In Payment Of Common Expenses. Pursuant to the applicable provisions of Chapter 183A, Section 6, and/or upon the written request of the holder of any mortgage upon a Home, the Trustees shall notify such holder of any default by a homeowner in the payment of his or her share of the Common Expenses.
  8. 6(d) Certificates. Upon written request of a Homeowner or his designee the Trustees shall, within ten (10) days, provide a certificate in conformity with 183A, Section 6(d), specifying the amount, if any, of any unpaid Common Expenses Assessed to that Homeowner and/or attributable to his or her Home. The Trustees may in their discretion impose a reasonable fee for the provision of such statement. Such certificate need only signed by any one Trustee, or by the Managing Agent if a designation executed by a majority of the Trustees then in office, identifying the Managing Agent so authorized, is simultaneously (or has been previously) recorded with the Registry of Deeds.

Section 6.6. Insurance. The Trustees and the Homeowners shall obtain and maintain the following insurance policies:

  1. Casualty Insurance. The Trustees shall obtain and maintain to the extent reasonably obtainable and permitted by applicable law, so-called master policies of casualty insurance providing fire-with-extended cove-rage and so-called all risk coverage insurance, insuring the Condominium, including, without limitation, the Common Elements, all of the Homes with all fixtures, additions, alterations and improvements thereof, all heating and cooling equipment and other service machinery, apparatus, equipment and installations comprised in the Common Elements, and also all such portions normally deemed to constitute part of the buildings and customarily covered by such insurance, but not including any furniture, furnishings, carpeting (except where wall-to-wall carpeting is installed directly over the subfloor), or household and personal property belonging to and owned by individual Homeowners or tenants, in an amount equal to the full replacement cost thereof (as that term is used for insurance purposes), subject to such reasonable deductible as the Trustees may determine and, which shall include, if available at a reasonable cost, so-called Agreed Amount, Inflation Guard, Construction Code and Replacement Cost Endorsements. The Trustees may purchase a so-called "blanket" policy covering all of the buildings, if there be more than one, if they deem it advisable. In determining full replacement value, the Trustees may reasonably rely upon the advice of the insurer or their agent. The name of the insured under such policy shall be stated in form, substance and effect similar to the following: "Trustees of POTTER POND ASSOCIATION for use and benefit, of the Homeowners of POTTER POND CONDOMINIUM and their mortgagees as their interests may appear". Such insurance shall contain the standard mortgagee clause and shall name the Trustees as Insurance Trustees for the use and benefit of all Homeowners of the POTTER POND CONDOMINIUM and their mortgagees as their interests may appear, with losses payable to and adjusted by the Trustees as Insurance Trustees in accordance with the provisions of these By-Laws. The Trustees may insure against such other hazards or risks of casualty 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, flood, and machinery explosion or damage.
  2. Liability Insurance. The Trustees shall obtain and maintain, to the extent obtainable and/or applicable, master policies of insurance with respect to the Common Areas and Facilities for the benefit and protection of the Trust and all Homeowners for: (i) comprehensive or commercial general liability insurance in such limits as the Trustees may, from time to time, determine but in no case less than a combined single limit of $1,000,000.00 per occurrence, $2,000,000.00 general aggregate in coverage, covering the Trust, the Trustees, the Managing Agent (if any), and each Homeowner with respect to liability arising out of ownership, maintenance, or repair of the Common Areas and Facilities of the Condominium, such insurance providing for cross claims by the co-insureds, and containing a "severability of interest" endorsement which shall preclude the insurer from denying the claim of a Homeowner because of negligent acts of the Trust, the Trustees or other Homeowners, and other provisions commonly referred to as a "Special Condominium Endorsement" or its equivalent; (ii) workmen's compensation and employee's liability insurance; (iii) if applicable, machinery insurance in such limits as the Trustees may, from time to time, determine but in no case less than $2,000,000.00 or the insurable value of the building(s) housing machinery, whichever is less; and (iv) such other liability insurance as the Trustees may from time to time deem appropriate and desirable.
  3. Fidelity Coverage. The Trustees shall obtain fidelity coverage against dishonest acts on the part of the Trustees, the Managing Agent (if any), and employees or volunteers responsible for handling funds belonging to the Trust or administered by the Trustees. This fidelity insurance shall name the POTTER POND ASSOCIATION as the named insured and shall be written in an amount equal to the maximum amount that will be in the custody of the Trust at any one time, but in no event less than three months' Common Expenses plus all reserves. In connection with such coverage, an appropriate endorsement to the policy to cover any persons who serve without compensation shall be added if the policy would not otherwise cover volunteers.
  4. Directors And Officers Liability Insurance. The Trustees shall obtain Directors and Officers Liability Insurance in such amounts and upon such terms as they deem appropriate.
  5. Homeowners' Insurance. Each Homeowner shall carry insurance at his or her own expense and for his or her own benefit insuring his or her furniture, furnishings, rugs, carpeting over hardwood floors, and other household and personal property located within his or her Home and its appurtenances, such as is not covered by the Condominium master policies - particularly providing insurance sufficient to cover any deductible in the Condominium's master policy, which insurance shall include loss assessment coverage. The maintenance by each Homeowner of such insurance coverage is intended, in material part, for coverage of losses when loss payments under the master policy, after the deductible is accounted for, are insufficient to fully pay for repair or replacement resulting from a casualty loss to a Home. Each Homeowner shall also maintain liability insurance with limits of not less than a combined single limit of $300,000.00 per occurrence, and with an endorsement to cover liability of any insured to another insured. All such policies shall contain waivers of subrogation and shall provide that the liability of the carriers issuing insurance obtained by the Trustees shall not be affected or diminished by reason of any such additional insurance carried by any Homeowner, or if so affected, it shall be deemed that the Homeowner's insurance coverage has been assigned to the Trust to the extent of such effect. Upon request, Homeowners shall provide the Trustees with evidence that such insurance coverages are in place. The Board of Trustees, by rule and regulation, may set minimum standards regarding the issuance of such policies, including, without limitation, as to the rating of the companies issuing such policies.
  6. Terms And Conditions Of Policies. Policies for casualty insurance, and to the extent applicable, such other policies of insurance, shall provide: (i) that the insurance company waive any right of subrogation against the Trustees, their agents and employees, and the Homeowners, their respective employees, agents, tenants and guests to the extent they are not specifically obligated hereunder; (ii) that the insurance shall not be prejudiced by any act or neglect of any Homeowners or occupants or any other person or firm (including employees and agents of the Trustees) when such act or neglect is not within the control of the Trustees (or Homeowners collectively) or by failure of the Trustees (or Homeowners collectively) to comply with any warranty or condition with regard to any portion of the premises over which the Trustees (or Homeowners collectively) have no control; (iii) that such policies may not be canceled or substantially modified without at least twenty (20) days' prior written notice to all Homeowners and mortgagees of Homes to whom certificates of insurance have been issued; (iv) that recovery thereunder shall not be affected on account of the availability of proceeds under any policies obtained by individual Homeowners covering their Homes; and (v) if obtainable, that the company shall waive any right it may. have under the policy to repair or restore damage should the Homeowners elect to terminate the Condominium because of such damage.
  7. Deductible; Apportionment Of Deductible. The Condominium's master policy of insurance may provide for a reasonable deductible from the coverage thereof as determined by the Trustees from time to time in their reasonable discretion. Where insurance proceeds are paid under the master policy due to a casualty loss as provided for under Section 6.7 of this Article VI, the deductible shall be apportioned as follows: (i) if the loss is solely to the Common Elements, the entire deductible amount shall be apportioned to the Trust as a Common Expense to be borne by the Common Funds; (ii) if the loss is solely to one Home, the entire deductible amount shall be apportioned to, and borne by, the Homeowner of such Home; and (iii) if the loss is to more than one Home, or to one or more Homes and the Common Elements, the deductible amount shall be apportioned to, and borne by, the Homeowner(s) of such Home(s) and the Trust, if applicable, in the same proportions as applies to the apportionment of the insurance proceeds to or among such Home(s) and the Common Elements with respect to such loss.
  8. Insurance Appraisal. The Trustees may obtain an appraisal of the full replacement cost of the property to be insured in accordance with the foregoing provisions of this Section, without deduction for depreciation, for the purpose of determining the amount of insurance to be maintained pursuant to this Section and may rely thereon, or upon the advice of the Trust's insurance agent as to the amount of necessary coverage. If the Trustees in their discretion deem it necessary, they shall upon notification of improvements to be made to a Home by a Homeowner increase the insurance coverage afforded by said master policy.
  9. Trustees As Insurance Trustees. Except with respect to policies maintained by the Homeowners, and losses covered under such policies, all as provided for in Section 6.6(E) of this Article VI, the Trustees (i) shall have exclusive authority to negotiate all losses as herein provided for, (ii) shall collect and receive all loss insurance proceeds, and (iii) shall hold, use, apply and disburse the same in accordance with the applicable provisions of these By-Laws for the benefit of the Homeowners and their respective mortgagees. In making any such disbursement, the Trustees may first deduct, or otherwise take account of, any deductible as may apply to such disbursement, as provided for in Section 6.6(G) of this Article VI.
  10. Notification Of Mortgagees. The Trustees, on behalf of the organization of Homeowners, shall, when requested by mortgagees of Homes, give written notice to such mortgagees of such loss to the Common Areas and Facilities, or to the Home mortgaged, as the mortgagee requests.
  11. Certificates Of Insurance. Certificates of insurance with proper mortgagee endorsements, when requested, shall be issued to Homeowners or their designees. The Trustees may charge a reasonable fee for issuing such certificates.
  12. Notification To Trustees Of Improvements. Each Homeowner shall notify the Trustees in writing of all improvements to his or her Home (except personal property other than fixtures) which exceed a total value of One Thousand Dollars ($1,000.00) within twenty (20) days after the commencement of construction or installation of such improvement, and upon receipt of such notice, the Trustees shall notify the insurer under any casualty policy obtained pursuant to this Section of such improvements and shall, if necessary, purchase additional casualty insurance in such amounts as may be required under this Section. Any premium increase caused by insuring such improvements may be assessed to the Homeowner of the improved Home as a Common Expense attributable to such Home. No Homeowner shall be entitled to receive insurance proceeds for repair or restoration of any such improvement not so reported to the Trustees, unless otherwise consented to by the Trustees. The obligations set forth in this paragraph are in addition to, not in lieu of, the requirements of Section 6.8(B) of this Article VI concerning improvements to Homes.

Section 6.7. Rebuilding, Restoration, And Condemnation. The following provisions shall apply, respectively, in the case of casualty loss or condemnation:

  1. Casualty Loss. In the event of damage to or destruction of the Condominium as a result of fire or any other casualty, the Trustees shall proceed as follows:

    1. Casualty Loss To Homes. Where such damage or destruction is solely to a Home, or Homes, the Trustees shall promptly adjust and collect the loss and disburse the master policy insurance proceeds in appropriate progress payments with appropriate retainage to the Homeowner(s) affected so as to facilitate and ensure the repair and restoration of the Home or Homes so damaged or destroyed. In such case as an affected Homeowner shall fail to promptly take such action as the Trustees deem appropriate to repair or restore his or her Home, the Trustees may, but shall not be obligated to, proceed thereto, in whole or in part, for his or her account and utilize the said insurance proceeds accordingly. The affected Homeowner(s) shall bear any cost or expense for such repair or restoration in excess of the available insurance proceeds under the master policy, including any excess resultant from the application of any deductible thereon. Where more than one Home is so damaged or destroyed, said proceeds shall be apportioned to the Homeowner(s) of such Homes according to the respective costs of repairing or restoring the damaged Homes. Any master policy deductible shall be apportioned in accordance with Section 6.6(G) of this Article VI and the Homeowner of each such Home shall be responsible for such Home's share of such deductible, whether or not same is paid under such Homeowner's personal insurance policy. Should there be any deficiency in the insurance proceeds resultant from a Homeowner's failure to promptly and accurately report any improvements to his or her Home pursuant to the provisions of Section 6.6(L) of this Article VI, such deficiency shall be borne by such Homeowner. The extent to which the cost is in excess of the insurance proceeds is attributable to such Homeowner's failure to report improvements shall be determined by the Trustees in their reasonable discretion.
    2. Casualty Loss To Homes And Common Elements Or Common Elements Only. Where such damage or destruction is solely to the Common Elements, or to both the Common Elements and one or more Homes, the Trustees, in their reasonable discretion, shall forthwith determine whether or not the loss exceeds ten percent (10%) of the value of the Condominium immediately prior to the casualty and thereupon shall notify all Homeowners of such determination. In furtherance thereof the Trustees may employ such persons, firms or entities as are, in their judgment, appropriate to assist in such determination.

      1. Loss Less Than Ten Percent. If the loss as so determined is less than, or equals, ten percent (10%) of the value of the Condominium immediately prior to the loss, and the insurance proceeds are sufficient to cover the cost of repairs to the affected Common Elements and Homes, the Trustees shall proceed with the necessary repair or restoration of the Common Elements and shall proceed in accordance with Section 6.7(A)(i) of this Article VI as to the apportionment of insurance proceeds and any deductible to the Homeowners of the affected Homes. If, however, the insurance proceeds are not sufficient to cover the cost of repair or restoration of the Common Elements and the affected Home(s), the proceeds will be first allocated to the cost of repair or restoration of the Common Elements and the balance, if any, shall be apportioned to the affected Home(s) in accordance with the provisions of said Section 6.7(A)(i) of this Article VI. To the extent the proceeds allocated as aforesaid are insufficient to cover the cost of repair or restoration of the Common Elements, the balance of the cost thereof shall be assessed to all Homeowners as a Common Expense. To the extent the proceeds apportioned as aforesaid are insufficient to cover the cost of repair or restoration of the affected Home(s), the relevant provisions of Section 6.7(A)(i) of this Article VI shall apply.
      2. Loss In Excess Of Ten Percent. If the loss to the Common Elements as so determined exceeds ten percent (10%) of the value of the Condominium immediately prior to the loss, the Trustees shall seek the agreement of seventy-five percent (75%) of the Homeowners by submitting to the Homeowners a form of agreement (the "Restoration Agreement") whereby the Homeowners authorize the Trustees to proceed with the necessary repair and restoration.

        1. If such percentage of Homeowners agree (by executing the Restoration Agreement) to proceed with the necessary repair or restoration, then the Trustees shall proceed thereto as provided in Subsections 6.7(A) (i) and 6.7(A)(ii)(a) of this Article VI; provided, however, that the cost of rebuilding the Condominium, in excess of any available Common Funds, including the proceeds of any insurance shall be a Common Expense, payable from Common Funds or by special assessment, if necessary ; and further provided, however, that if such excess cost exceeds ten (10%) percent of the value of the Condominium prior to the casualty, any Homeowner who did not so agree may apply to the superior court of the county in which the Condominium is located on such notice to the Trust as such court shall direct, for an order directing the purchase of his or her Home by the Trust at the fair market value thereof as approved by such court. The cost of any such purchase shall be a Common Expense.
        2. If such percentage of Homeowners do not, within one hundred twenty (120) days of the occurrence of such loss, agree to proceed with the repair, rebuilding or restoration (by executing the Restoration Agreement and timely returning the same to the Trustees), the Condominium, including all Homes, shall be subject to partition at the suit of any Homeowner. Such suit shall be subject to dismissal at any time prior to entry of an order to sell if an appropriate agreement to rebuild is filed. The net proceeds of a partition sale together with any Common Funds of the Trust shall be divided in proportion to the Homeowner's respective undivided ownership in the Common Elements and distributed, subject to any rights of holders of Home mortgages, to the Homeowners. Upon such sale, the Condominium shall be deemed removed from the provisions of Chapter 183A.

    The Trustees may perform emergency work essential to the preservation and safety of the Premises or the safety of persons, or required to avoid the suspension of any essential service to the Condominium without having first adjusted the loss or obtained proceeds of insurance or otherwise having complied herewith.

    If there shall have been a repair or restoration pursuant to the foregoing and the amount of insurance proceeds shall have exceeded the cost of such repair or restoration, then the excess of such insurance proceeds, if any, shall be added to the Condominium's reserve funds provided for in Section 6.5(A) of this Article VI, or shall be, at the option of the Trustees, divided among the Homeowners in proportion to their respective Beneficial Interests; provided, however, that no provision herein shall be deemed to give a Homeowner or any other party priority over any rights of the holder of a first mortgage (if any) on such Homeowner's Home pursuant to such mortgage in the case of a distribution to such Homeowner of insurance proceeds for losses to Homes and/or the Common Elements. The holder of a first mortgage on a Home shall be entitled to priority with respect to any insurance proceeds distributed to its mortgagor(s).

    Notwithstanding anything to the contrary contained in Section 6.7(A)(ii), in the event that any Homeowner shall dissent from any determination of the Trustees with respect to the value of the Condominium or any other determination or action of the Trustees under Section 6.7(A)(ii) by notice in writing to the Trustees within ten (10) days after such determination or action, and such dispute shall not have been resolved within thirty (30) days after such notice, then either the Trustees or the dissenting Homeowner may submit the matter to arbitration, and such arbitration shall be conducted in accordance with the rules and procedures of the American Arbitration Association.

    Notwithstanding anything to the contrary contained in the preceding paragraphs of Section 6.7(A)(ii), the Trustees shall not, in any event, be obliged to proceed with any repair or restoration unless and until they have received funds in an amount equal to the estimate of the Trustees of all costs thereof.

    The foregoing provisions of this Section 6.7 are intended to comply with Section 17 of Chapter 183A and to be, in addition, consonant with the requirements of the Federal Home Loan Mortgage Corporation ("FHLMC") and the Federal National Mortgage Association ("FNMA"). To the extent there is a conflict between the provisions hereof and Chapter 183A, Chapter 183A shall control.

  2. Eminent Domain. If more than ten percent (10%) of the Condominium is taken under any power of eminent domain, the taking shall be treated as a "casualty loss", and the provisions of Section 17 of Chapter 183A shall apply. Where one or more Homes have been substantially altered or rendered uninhabitable as a result of a partial taking, and the Homeowners vote to restore and continue the Condominium pursuant to the provisions of Section 17 of Chapter 183A, the Trustees shall have the authority to acquire the remaining portions of such Homes, for such price as the Trustees shall determine, provided that any Homeowner of such remaining portion who does not agree with such determination may apply to the superior court of the county in which the Condominium is located, on such notice to the Trustees as such court shall direct, for an order directing the purchase of such remaining portion at the fair market value thereof as approved by such court. Where as a result of a partial taking any Home is decreased in size or where the number of Homes is decreased by a partial taking, then the Trustees, to the extent permitted by law, may make such provision for the reallocation of the undivided interests of the Homes in the Common Areas and Facilities, as shall be just and equitable.

    In the event of any such total or partial taking under the powers of eminent domain, the Homeowners shall be represented by the Condominium acting through the Trustees. In the event of a partial taking the award shall be allocated among the affected Homes according to their appurtenant undivided interests in the Common Elements as set forth in the Master Deed, as amended, and shall be paid first to the extent permitted by law, to the holder (s) of the first mortgage of such Home(s), if any, up to, but not in excess of, the then principal balance secured thereby and any accrued interest and other charges then due the holder(s) of the first mortgage. In the case of a total taking of all Homes and the Common Elements, the entire award shall be payable to the Trustees to be allocated among the Homes according to their appurtenant undivided interests in the Common Elements as set forth in the Master Deed, as amended, and paid first to the extent permitted by law, to the holder(s) of the first mortgages of such Home(s), if any, up to, but not in excess of, the then principal balance secured thereby and any accrued interest and other charges then due the holder(s) of the first mortgage. As to any portion or portions of any award which are attributable to direct or consequential damages suffered by particular Homes, they shall be payable to the Homeowners of such particular Homes and their mortgagees, as their interests may appear.

  3. Retention Of Architect. Whenever the estimated cost, as determined by the Trustees, of repair or restoration exceeds as to any one casualty or occurrence, ten percent (10%) of the value of the Condominium or twenty-five percent (25%) of the value of any one Home, then the Trustees, in the exercise of their discretion and as a common expense, may retain a licensed architect or licensed engineer, who shall not be directly or indirectly a Homeowner or an employee or agent of any Homeowner or a Trustee or an employee or agent of any Trustee, to supervise the work of repair or restoration, and no sums shall be paid by the Trustees on account of such repair or restoration except upon certification to them by such architect or engineer that the work for which payment is being made has been completed in a good and workmanlike manner in accordance with approved plans and specifications, and that the estimated total cost of completion of said repair or restoration, less amounts theretofore advanced, does not exceed. the undisbursed proceeds of insurance as augmented by funds obtained by any assessment levied or chargeable to the Homeowners as a Common Expense.

Section 6.8. Improvements To The Homes And Common Elements. The following provisions shall apply in the case of any improvement at the Condominium.

  1. Improvements To Common Areas And Facilities. If and whenever the Trustees shall propose to make any improvement to the Common Areas and Facilities or shall be requested in writing by Homeowners holding twenty-five (25%) percent or more of the Beneficial Interest to make any such improvement,

    The Trustees shall submit to all Homeowners a form of agreement (which may be in several counterparts and shall be referred to as the "Improvement Agreement") specifying the improvement or improvements proposed to be made and the estimated cost thereof, and authorizing the Trustees to proceed to make the same. Upon the receipt by the Trustees of such Improvement Agreement executed by Homeowners holding seventy-five percent (75%) or more of the Beneficial Interest or the expiration of ninety (90) days after such agreement was first submitted to the Homeowners, whichever of said events shall first occur, the Trustees shall notify all of the Homeowners of the aggregate percentage of Beneficial Interest of the Homeowners who have then executed such Improvement Agreement. If such percentage is equal to or exceeds seventy-five percent (75%), the Trustees shall proceed to make the improvement or improvements specified in such Improvement Agreement and, in accordance with Section 18 of Chapter 183A, shall charge the cost of such improvements to all Homeowners as a Common Expense in accordance with their respective Beneficial Interests; provided, however, that if the Trustees shall determine in their reasonable discretion that the cost of such improvement(s) exceeds ten percent (10%) of the then value of the Condominium, any Homeowner who did not so agree to proceed may apply to the superior court of the county in which the Condominium is located, on such notice to the Trustees as such superior court shall direct, for an order directing the purchase of his Home by the Trustees at the fair market value thereof as approved by such court. The cost of any such purchase shall be a Common Expense. If Homeowners holding more than fifty percent (50%) of the Beneficial Interest but less than seventy-five percent (75%) thereof so agree to make such improvements in accordance with the provisions of this Section 6.8(A), the Trustees shall proceed to make such improvement or improvements and shall charge the same solely to the Homeowners so approving; provided, however, that such Homeowners shall have been afforded the opportunity to make their execution of the Improvement Agreement upon conditional upon the execution of such agreement by Homeowners holding seventy-five percent (75%) or more of the Beneficial Interest.

    Notwithstanding anything to the contrary contained in this Subsection, in the event that any Homeowner(s) shall dissent from any determination of the Trustees with respect to the value of the Condominium or any other determination or action of the Trustees under this Section 6.8(A) by notice in writing to the Trustees within ten (10) days after such determination or action, and such dispute shall not be resolved within thirty (30) days after such notice, then either the Trustees or the dissenting Homeowner(s) may submit the matter to arbitration, and such arbitration shall be conducted in accordance with the rules and procedures of the American Arbitration Association.

    Notwithstanding any provision of this Section 6.8(A) to the contrary, the Trustees shall not, be obligated to proceed with any improvement unless and until they have received funds in an amount equal to the estimate by the Trustees of all costs and expenses of making such improvement.

  2. Improvements To Homes. No Homeowner shall make any addition, alteration, repair, or improvement in or to his or her Home or to any Limited Common Elements, which may affect the Common Elements or any portion thereof, the structural integrity of the building(s), or any other Home; which may affect the dimensions of a Home; or which may cause any dislocation of or interruption to the Common Elements, without the prior written consent of the Trustees. Any Homeowner desiring to make such an addition, alteration, repair, or improvement shall request approval in advance from the Board of Trustees, pursuant to and in accordance with the requirements of the Master Deed, including, without limitation, Section 12D thereof, as the same may be amended or as the same may be supplemented by any provision of the Declaration of Trust and/or the Rules and Regulations adopted from time to time by the Trustees; provided, however, that, if the Master Deed does not contain provisions governing such requests at any time, all such requests shall be made pursuant to and in accordance with all applicable provisions of this Declaration of Trust and such Rules and Regulations as the Board of Trustees may adopt from time to time concerning such requests for approval. Although having no obligation to do so, the Trustees, in response to a request for consent under this Section 6.8(B), may inquire of and, in their discretion, consider the support or opposition of any and all Homeowners whose Homes abut the subject Home or Limited Common Element.

    All additions, alterations, repairs, or improvements to any Home, whether or not requiring such approval by the Trustees under the applicable terms hereof or the Master Deed or Rules and Regulations, shall be performed in compliance with all applicable laws, regulations, and codes, and when required thereby, by licensed contractors and shall be completed in a good and workmanlike manner. Each Homeowner, and his contractors, shall cooperate with the Trustees and other Homeowners so as not to unduly inconvenience or disturb the occupants of the Condominium. Notwithstanding any other provision of this Declaration of Trust, the cost of repairing or restoring any damage to the Common Areas and Facilities or to any Home which is caused by any work being performed by or for a Homeowner shall be charged solely to such Homeowner.

  3. Notification To Trustees Of Value. If the Trustees approve any said request as provided above in Section 6.8(B) of this Article VI, or if the Homeowner makes any addition, repair, alteration or improvement not requiring the consent of the Trustees, the Homeowner shall promptly notify the Trustees of the insurable value of said improvement pursuant to the applicable provisions of Section 6.6.(L) of this Article VI. Such notice shall state in reasonable detail the nature of the improvements and the value thereof. Each Homeowner shall, upon request by the Trustees, also submit to the Trustees such further information relating to said improvements as the Trustees shall reasonably require.

Section 6.9. Rules, Regulations, Restrictions And Requirements. The Trustees shall have the right (which right shall not be delegated) at any time and from time to time to adopt, amend, and rescind reasonable administrative rules and regulations governing the operation, appearance, and use of the Common Areas and Facilities including, without limitation, the Limited Common Elements, and otherwise providing for the administration of the Condominium as contemplated by the Master Deed and this Declaration of Trust, and in the interpretation thereof (the "Rules and Regulations"), and shall give reasonable notice thereof to the Homeowners; provided, however, that any such Rules and Regulations shall not be promulgated and/or amended which will materially and adversely affect the holder of any first mortgage of which the Trustees have received notice without the written consent of such holder. Any such Rules and Regulations shall be consistent with provisions of the Master Deed, this Declaration of Trust and Chapter 183A. The Trustees may charge a reasonable fee for the provision of such copies. Any Rule or Regulation may be modified, amended or revoked upon the vote of Homeowners holding more than fifty (50%) percent of the Beneficial Interest hereunder at a meeting duly held therefor.

Section 6.10. Violations And Enforcement. The use of the Condominium and each Homeowner's Home shall be restricted to and shall be in accordance with the provisions of the Master Deed, this Declaration of Trust (including such administrative Rules and Regulations as the Trustees may adopt pursuant to this Declaration of Trust), and all applicable laws, zoning ordinances, rules, regulations, and requirements of all governmental bodies having jurisdiction over the Condominium or the use and occupancy thereof.

The Master Deed, this Declaration of Trust (including the By-Laws contained herein), and the Rules and Regulations, as from time to time amended, shall be enforced by the Trustees. The Trustees may eliminate any violation and the cost and expense of eliminating such shall be chargeable to the Homeowner who himself, or whose family, employees, agents, visitors, lessees, tenants, licensees, or pets are responsible for such violation. The cost of so eliminating a violation caused by persons other than those identified in the preceding sentence shall be a Common Expense. The Trustees may also levy reasonable fines against the Homeowner for such violations if any such violation is not cured within three (3) days after notice thereof, and such fine shall constitute a portion of such Homeowner's Common Expenses which shall be payable by the Homeowner of such Home upon demand and shall be enforceable as a Common Expense. For each day a violation continues after notice it shall be considered a separate violation. In the case of persistent violation, the Trustees shall have the power to require the Homeowner to post a bond, or other security as they may determine, to provide for adherence.

In enforcing the Master Deed, this Declaration of Trust (including the By-Laws contained herein), and the Rules and Regulations, as to leased Homes, the Trustees may proceed, including through the imposition of fines, against the Homeowner, the tenant, or both as the Trustees, in their sole discretion, may determine. A failure of a tenant to pay a fine upon demand shall constitute grounds for the Trustees to obtain the removal of such tenant from the Condominium as provided in this Declaration of Trust, the Master Deed, and/or under applicable law.

Section 6.11. Homeowner And Resident Responsibility. Except as may be otherwise specifically provided herein, a Homeowner shall be fully responsible for the acts and omissions, malfeasance and misfeasance, and all other conduct of his/her family members, agents, employees, invitees, lessees, tenants, licensees, guests, pets, or others upon the Premises at the behest of the Homeowner. Residents shall subsidiarily be so responsible for those upon the Premises at their behest.

Section 6.12. Enforcement Of Charges, Fines, Obligations. Any charge, fine, or other financial obligation to, of or on any Homeowner and/or Home herein provided for shall constitute a lien upon such Home and be enforceable to the same manner and extent as for Common Expenses provided for in this Declaration of Trust and in Chapter 183A, Section 6.

Section 6.13. Attorney's Fees And Costs. In such case as it is necessary for the Trustees to engage the services of an attorney, or attorneys, for the purpose of enforcing against a Homeowner, tenant, occupant, or other person bound thereby, any provision of the Master Deed, this Declaration of Trust (including the By-Laws contained herein), the Rules and Regulations, or obligations thereunder or under Chapter 183A, and/or for the purpose of defending any action brought by such person(s), and the Trustees should prevail thereon, said Homeowner, tenant, occupant, or other such person shall be liable for, in addition to any other liability, the fees and costs of such attorneys in so proceeding thereto, including the fees of all experts engaged in connection therewith. As to Homeowners, the amount of such fees and costs shall constitute a lien upon the Home enforceable to the same manner and extent as a lien for Common Expenses, and the Homeowner shall be personally liable therefor.

Section 6.14. Inspection Of Books. The books, accounts and records of the Trustees and of the Organization of Homeowners shall be open to inspection to any one or more of the Trustees, to the Homeowners and to first mortgagees. The Trustees may, however, subject to and in accordance with the applicable provisions of Chapter 183A, adopt reasonable rules and impose reasonable restrictions upon such access, including, but not limited to hours and place of availability, fees for reproduction, access only for condominium related purposes, and provision for the maintenance of confidentiality as to appropriate records.

Section 6.15. Financial Reports To Homeowners. Within one hundred and twenty (120) days of the end of the fiscal year, the Trustees shall make available to the Homeowners a financial report prepared by a certified public accountant which shall include a balance sheet, income and expense statement and statement of funds.

  1. Audit. Any Homeowner, at his sole cost and expense, may at any time have the financial records of the Condominium audited by a certified public accountant of his choosing. The Trustees shall fully cooperate therein; provided, however, that the auditing Homeowner shall pay upon demand all reasonable costs and expenses incurred by the Trust in regards thereto.

Section 6.16. Fiscal Year. The fiscal year of the Trust shall be each calendar year ending December 31 or such other date as may from time to time be determined by the Trustees.

Section 6.17. Checks, Notes, Drafts, And Other Instruments. Except as to reserve accounts, all 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 one Trustee or by the Managing Agent or any person or persons to whom such power may at any time or from time to time be delegated by not less than a majority of the Trustees. Checks drawn on the Trust's reserve account(s) shall be signed by any one or two Trustees, as may be designated from time to time by the Trustees.

  1. Seal. The Trustees may sign any instrument under seal without being required to affix a formal, common or wafer seal.

Section 6.18. Notices To Homeowners. Unless otherwise required by applicable law or order of court, every notice to any Homeowner required under the provisions hereof, or which may be deemed by the Trustees necessary or desirable in connection with the administration of the Condominium 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 Homeowner by leaving such notice, or mailing it postage prepaid and addressed to such Homeowner, at his address at the Condominium, unless such Homeowner has designated in writing to the Trustees some other address for the receipt of notices. Such notice shall be given within such time period as herein, or by such court, required, and if there be no specified period then at least seven (7) days prior to the date fixed for the happening of the matter, thing or event of which such notice is given.

Section 6.19. Information To Be Provided By Homeowners To Trustees And Tenants. Each Homeowner shall provide to the Trustees, at such times and in such manner and form as the Trustees shall require, such information and data as the Trustees may reasonably require in and for the performance of the Trustees' duties as herein provided. Such information and data shall include, but shall not be limited to:

  1. The name and mailing address of the Homeowner(s).
  2. The names of all occupants of the Home, except guests of less than thirty (30) days duration.
  3. The name and address of all mortgagees of the Home, including the applicable loan numbers.

In the event, and at the time a Homeowner should assign, lease, sell, convey, or otherwise transfer his or her interest in his or her Home, such Homeowner shall notify the Trustees of the name and address of the person to whom he or she is so leasing, selling, conveying or transferring the Home. Upon request of such Homeowner, the Trustees shall provide such person with copies of the Master Deed, this Declaration of Trust, and the Rules and Regulations promulgated hereunder, as they may then be amended. The Trustees may charge such Homeowner a reasonable fee for the provision of said documents and require a receipt for the provision of the documents.

Homeowners who lease, let, and/or rent their Homes shall be subject to the rental provisions and restrictions contained in the Master Deed including, without limitation, in Section 12 thereof, and shall provide to the tenant or lessee the name, address, and telephone number of the person responsible for the maintenance of the Home and the name of the person responsible for the maintenance of the Common Elements, which latter shall be provided to the Homeowner by the Trustees.

Section 6.20. Voting, Consents And Action Thereon. In regard to such actions and things as to which the consent or vote of the Homeowners (and/or consent of mortgagees) is required under this Declaration of Trust, unless a shorter period or requirement is imposed hereunder or by applicable law and except as provided in Article IX regarding amendments to this instrument, the Trustees shall have a period of ninety (90) days in which to obtain such consent or vote, including any required mortgagee consent. No Homeowner or mortgagee may, after giving his/her/its consent or vote, rescind, modify, or revoke such during said period. Should a Home be sold during said period after the giving of such consent or vote, such consent or vote shall remain valid notwithstanding the change of ownership.

Upon any consent or vote of the Homeowners, and mortgagees, which authorizes or contemplates the taking of action or doing of a thing, such consent or vote shall be deemed to be of no force and effect unless the contemplated action or thing is undertaken (but not necessarily completed) within six (6) months of securing the requisite consent or vote.

Section 6.21. Managing Agent. The Trustees may hire or appoint a person or entity to assist in the administration of the Condominium who shall perform such duties in the administration, management and operation of the Condominium, including the incurring of expenses, the making of disbursements and the keeping of accounts as the Trustees shall from time to time determine (referred to in this instrument as the "Managing Agent"). The Managing Agent so retained shall in all events fully comply with the applicable provisions of Chapter 183A. Notwithstanding the appointment of such a Managing Agent, the Trustees shall retain ultimate control over the administration, management, and operation of the Condominium.

Any such agreement for professional management of the Condominium shall be terminable by the Trust without cause and without incurring payment of a termination fee on no more than ninety (90) days' written notice. Such agreement also may be terminated by the Trust for cause upon ten (10) days' notice; provided, however, that the Trustees may provide in such contract that the Managing Agent may cure within such period. Notwithstanding this provision, there shall be no right of cure in regard to the misappropriation of the Condominium's funds upon which event termination may be had immediately upon notice.

Section 6.22. Acquisition of Homes By Trustees. Acquisition of Homes by the Trustees for the Trust may be made from the Common Funds in the hands of the Trustees, or if such funds are insufficient, the Trustees may levy an assessment against each Homeowner in proportion to his or her Beneficial Interest, as a Common Expense assessment, or the Trustees, in their discretion, may borrow money to finance the acquisition of such Home; provided, however, that any such financing shall only be secured by the granting of a mortgage or other security interest in the Home, together with its appurtenant interests, being acquired.

ARTICLE VII
Mortgages

Section 7.1. Home Mortgages. Any Homeowner may, without the prior written approval of the Trustees, mortgage his Home to any person, firm, or entity.

  1. Notice To Trustees. A Homeowner who mortgages his Home shall notify the Trustees of the name and address of his mortgagee and loan number, and the Trustees shall maintain such information. Except as may be provided by applicable law, the failure of a Homeowner to so notify the Trustees shall not invalidate the mortgage or any other provisions or the rights of any holder of such mortgage.
  2. Notice Of Unpaid Common Expenses And Other Matters. In addition to the requirements of Chapter 183A, Section 6, the Trustees, whenever so requested in writing by a mortgagee of a Home, shall promptly report (i) any then unpaid Common Expenses due from, or any other default by, the Homeowner of the mortgaged Home; (ii) any other default in the performance by the Homeowner of the mortgaged Home of any obligation under the Master Deed, this Declaration of Trust or the Rules and Regulations which is not cured within sixty (60) days of notice to the Homeowner; (iii) any condemnation loss or any casualty loss which affects a material portion of the Condominium or any Home on which there is a mortgage held, insured, or guaranteed by a mortgage holder or insurer or guarantor, as applicable; (iv) any lapse, cancellation, or material modification of any insurance policy or fidelity insurance maintained by the Trustees; and (v) any proposed action which requires the consent of a specified percentage of eligible mortgage holders as specified in the Master Deed or this Declaration of Trust.
  3. Assignment Of Homeowner Rights. The right of any Homeowner to vote, to grant or withhold any consent, and to exercise any other right or option herein granted to a Homeowner may be assigned or transferred in writing to, or restricted in favor of, any mortgagee or a mortgage covering that Homeowner's Home, and the Trustees shall upon receipt of written notice thereof from such Homeowner or mortgagee be bound by any such assignment or transfer which appears of record to be in full force and effect.

ARTICLE VIII
Rights And Obligations Of Third Parties Dealing With The Trustees

Section 8.1. Third Parties' Reliance. No purchaser, mortgagee, lender, or other person dealing with the Trustees as they then appear of record in the Registry shall be bound to ascertain or inquire further as to the identity of said Trustees or of any changes therein. The receipts of the Trustees, or any one of them, for moneys or things paid or delivered to them, or him/her, 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 Trust Property shall be bound to ascertain or inquire as to the existence or occurrence of any event or purpose in or from which sale, mortgage, pledge, or charge is herein authorized or directed, nor 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, nor as to the regularity of the resignation, election, or appointment of any Trustee.

Section 8.2. Personal Liability Excluded. 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 proceeding, 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 contract or claim, or for the payment of any debt, damage, rudiment, 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 Homeowners, present or future, shall be personally liable therefor; provided, however, that nothing herein contained shall be deemed to limit or impair the liability of Homeowners under the provisions of Chapter 183A and under the provisions of the Master Deed, this Declaration of Trust, and the Rules and Regulations promulgated pursuant thereto, all as the same may be amended from time to time.

Section 8.3. All Instruments Subject To Terms Hereof. Every note, bond, contract, order, instrument, certificate, undertaking, obligation, covenant, or agreement, whether oral or written, made, issued, or executed by the Trustees, or by any agent or employee of the Trustees, shall be deemed to have been entered into subject to the terms, conditions, provisions and restrictions hereof, whether or not express reference shall have been made to this instrument.

Section 8.4. Recording. This Declaration of Trust, and any amendments hereto, and any certificate herein required to be recorded and any other certificate or instrument signed by a majority of Trustees which may be deemed desirable to record, shall be recorded with the Registry and such recording shall be deemed conclusive evidence of the contents and effectiveness thereof according to the purport thereof; and all persons dealing in any manner whatsoever with the Trustees, the Premises, and/or the Trust Property, or any beneficiary hereunder, shall be held to have notice of any alteration or amendment of this Declaration of Trust, these By-Laws, or change of Trustee or Trustees, when the same shall be recorded with the Registry. Any certificate signed by a majority of the Trustees (or the sole Trustee if there be but one), 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 the Registry shall be conclusive evidence as to the existence of such alleged facts in favor of all third persons, including the Trustees, acting in reliance thereon. Any certificate executed by a majority of the Trustees (or the sole Trustee if there be but one) in office at the time, 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. Notwithstanding the foregoing, a certificate issued pursuant to General Laws, Chapter 183A, Section 6(d) may be signed by any one Trustee as provided in Article VI, Section 6.5(H) of this Declaration of Trust.

Section 8.5. Certificates Of Incumbency And Address. The Trustees shall from time to time, as required by Chapter 183A and/or this Declaration of Trust, record with the Registry of Deeds appropriate instruments reflecting the composition of the Board of Trustees and the mailing address of the Trust.

ARTICLE IX
Amendment And Termination

Section 9.1. Amendments To Declaration Of Trust. The Trustees 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, provided such amendment, alteration, addition, or change is consented to in writing by the Homeowners holding at least sixty-six and two-thirds (66 2/3%) percent of the Beneficial Interest or if such amendment, alteration, addition, orchange affects a provision then requiring more than such percentage, then by such larger percentage; provided, always, however, that no such amendment, alteration, addition, or change (a) according to the purport of which, the percentage of the Beneficial Interest hereunder of any Homeowner would be altered, or in any manner or to any extent whatsoever modified or affected so as to be different than the percentage of the Beneficial Interest of such Homeowner in the Common Areas and Facilities as set forth in the Master Deed, except as may be provided for elsewhere hereunder or in the Master Deed, other than by consent of the Homeowners specified in the Master Deed; or (b) which would render this Declaration of Trust contrary to or inconsistent with any requirements or provisions of Chapter 183A, shall be valid or effective. All consents necessary hereto shall be obtained within ninety (90) days of the date of signature of the first consent. Any consent once given may not be revoked. In such case as a Home is sold during the six month consent period, the consent of the seller shall bind the purchasing Homeowner.

  1. Effective Date Of Amendment. Any amendment, alteration, addition, or change pursuant to the foregoing provisions of this paragraph shall become effective upon the recording with the Registry an instrument of amendment, alteration, addition, or change, as the case may be, signed, sealed and acknowledged by a majority of the Trustees then in office, setting forth in full the amendment, alteration, addition, or change and reciting the consent of the Homeowners and/or mortgagees 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 thereof, 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. No such amendment, addition, or change shall be of any effect unless such instrument is so recorded within six (6) months of the date of the first consent thereto.
  2. Special Amendments. The foregoing notwithstanding, the Trustees shall have the power coupled with the interest to amend this Declaration of Trust by an instrument signed by a majority of their number and duly recorded with the Registry of Deeds, to (1) correct any scrivener's or technical error made herein; or (2) to make this Declaration of Trust (including the By-Laws herein) comply with Massachusetts General Laws, Chapter 183A, and other applicable state or federal law or regulation; or (3) to comply with rules or regulations promulgated by the Federal National Mortgage Association (FNMA) or the Federal Home Loan Mortgage Corporation (FHLMA), and/or other socalled secondary mortgage market agencies; or (4) to satisfy applicable insurance requirements. This power may be exercised not only to add additional provisions or modify existing provisions, but also to delete theretofore required provisions should such no longer be required.

Section 9.2. Termination. The Trust shall terminate only upon the removal of the Condominium from the provisions of Chapter 183A in accordance with the procedure therefor set forth in Section 19 of Chapter 183A and in the Master Deed.

Section 9.3. Actions Upon Termination. Upon the termination of the Condominium Association, the Trustees may, subject to and in accordance with provisions of Chapter 183A, sell and convert into money the whole of the Trust Property or any part or parts thereof, and, after paying or satisfying all known liabilities and obligations of the Trust and providing for indemnity against any other outstanding liabilities and obligations, shall divide the proceeds thereof among, and distribute in kind, all other property then held by them pursuant hereto, to the Homeowners as tenants in common, according to their respective percentages of Beneficial Interest. In making any sale under this provision, the Trustees shall have power to sell by public auction or private contract and to buy in or rescind or vary any contract of sale and to resell without being answerable for loss and, for said purposes, to do all things, including the execution and delivery of instruments, as may be 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 Condominium Trust Property may have passed.

Notwithstanding anything to the contrary contained in this Section 9.3, in the event that any Homeowner shall dissent from any determination of the Trustees with respect to the value of the Condominium or any other determination or action of the Trustees under this Section 9.3, by notice in writing to the Trustees within ten (10) days after such determination or action, and such dispute shall not have been resolved within thirty (30) days after such notice, then either the Trustees or the dissenting Homeowner may submit the matter to arbitration, and such arbitration shall be conducted in accordance with the rules and procedures of the American Arbitration Association.

ARTICLE X
Miscellaneous

Section 10.1. Construction, Interpretation, And Waiver. In the construction hereof, whether or not so expressed, words used in the singular or in the plural, respectively, include both the plural and the singular, words denoting one gender include the other gender, 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 them or required by the subject matter or context. The title headings of different parts hereof are inserted only for the convenience of reference and are not to be taken to be any part hereof nor to control or affect the meaning, construction, interpretation, or affect hereof. All the powers and provisions herein contained shall take effect and be construed according to the laws of the Commonwealth of Massachusetts. The invalidity of any part of this Declaration of Trust shall not impair or affect in any manner the validity, enforceability, or effect of the balance of this Declaration of Trust. No restriction, condition, obligation, or provision contained in this Declaration of Trust shall be deemed to have been abrogated or waived by reason of any failure to enforce the same, irrespective of the number of violations or breaches thereof which may occur.

Section 10.2. Conflicts. If any provision of this Declaration of Trust shall be invalid or shall conflict with Chapter 183A, as amended, or if any provision of this Declaration of Trust conflict with any provision of the Master Deed, as amended, then the following rules of construction shall be used:

  1. In the event of a conflict between this Declaration of Trust and the provisions of Chapter 183A, as amended, the provisions of Chapter 183A shall control;
  2. In the event of a conflict between this Declaration of Trust and the provisions of the Master Deed, as amended, the provisions of the Master Deed shall control.
  3. In the event of a conflict between this Declaration of Trust and the provisions of any Rule and Regulation, recorded (including those recorded prior hereto) or unrecorded, the provisions of this Declaration of Trust shall control.

Section 10.3. Nondiscrimination Notwithstanding anything to the contrary herein, no part of this Declaration of Trust or the Rules and Regulations now or hereafter adopted or promulgated shall ever be deemed to prevent, restrict, discourage, or hinder, in fact, in any manner whatsoever the alienation, conveyance, mortgage, purchase, sale, rental, lease, license, use, or occupancy of Homes or any negotiations in connection therewith because of race, religion, creed, color, national origin, handicap, sex, sexual preference, age, ancestry, marital status, status as a veteran or member of the armed services, or any ethnic group, blindness, or by reason of the fact that children will occupy such Home, receipt of public assistance, or, in addition to the foregoing by any reason whatsoever prohibited by any federal, state, county, or municipal law.

Section 10.4. Abatement And Enjoinment Of Violations By Homeowners. The violation of any Rule or Regulation adopted by the Board of Trustees or the breach of any provision(s) of this Declaration of Trust, or the breach of any provisions of the Master Deed shall give the Board the right, in addition to any other rights set forth in this Declaration of Trust, to enjoin, abate, or remedy by appropriate legal proceedings, either at law or in equity, the continuance of any such breach.