043118 2003 DEC-4 PH 3:32
Strafford County
Registry of Deeds
DECLARATION OF COMMON AREA
AND COMMON AREA MAINTENANCE AGREEMENT
FOR IAN’S WAY
PRPC DEVELOPMENT GROUP, LLC
ROCHESTER, COUNTY OF STRAFFORD, STATE OF NEW HAMPSHIRE
WHEREAS, PRPC DEVELOPMENT, GROUP, LLC. of Rochester, Strafford County, New Hampshire, hereinafter referred to as the “Developer”, is the owner of a certain tract or parcel of land situate in the City of Rochester, County, of Strafford, State of New Hampshire, more fully described in the deed of Family Farm Realty to said PRPC Development Group, LLC, said deed dated November 19, 2002 and recorded in the Strafford County, Registry of Deeds at Book 2629, Page O167: and
WHEREAS, the Grantor plans to develop said property into single family residential house lots in a cluster subdivision as shown on a Plan entitled “Subdivision of Land, Four Rod Road, Rochester, N.H. for PRPC Development Group, LLC” dated June, 2003, prepared by Norway Plains Associates, Inec, and recorded in the Strafford County Registry of Deeds as Plan # 73-48:
WHEREAS, the Developer desires, and the conditions of subdivision require, that an association of lot owners be formed for the purpose of maintaining the common areas of the said cluster subdivision, and to provide for the future maintenance and improvement thereof.
NOW THEREFORE, the Developer declares for itself, and its successors and assigns, that the land encompassing the common area and common amenities as shown on the aforesaid plan shall be subject to the covenants and restrictions set forth below, which covenants and restrictions shall be deemed to run with the land and inure to the benefit of all owners of record in the lots contained in said subdivision.
A. MEMERSHIP AND VOTING RIGHTS IN THE IAN’S WAY HOMEOWNERS ASSOCIATION
Section 1: Membership: Every person or entity who or which is the owner of record of the fee, or any undivided interest in the fee. of any· of the fifteen (15) lots nun1bered 217/4-5 through 217/4-19 inclusive on the subdivision as depicted in the above referenced plan, specifically excluding therefrom lot 217/4-20, shall be subject to the covenant of assessment by the Ian’s Way Homeowners Association in accordance with the Covenant for Maintenance Assessments, defined herein, shall be a member of the said homeowners association. Any person or entity who or which holds bare legal title merely as the security of any obligation shall not be deemed to be a member.
Section 2: Voting Rights: Said association shall have two classes of voting membership.
Class A: Class A owners shall be all those owners as defined in Section 1 with the exception of the developer, to wit PRPC Development Group, LLC or its successors in record title as Developer. Class A members shall be entitled to one vote for each lot in which they hold the interests required for membership by Section 1. When more than one person holds such interest or interests in any lot, all such persons shall be members, and the vote for such lot shall be exercised as they among themselves determine, but in no event shall more than one vote be cast with respect to any such lot. In the event two or more owners of a single lot are unable to agree upon how to exercise their vote on a particular issue, the vote shall not be counted.
Class B: Class B members shall be said Developer, or its successors in record title, as Developer. The Class B members shall be entitled to three (3) votes for each lot in which they hold the interest required for membership by Section 1. The Class B member shall be exempt from payment of any and all assessments provided for herein.
Any member not then in good standing in the payment of dues and assessments shall not be entitled to vote on any matter arising from or related to this Declaration or the By-Laws of the association.
Section 3: Tie Breaking Procedure: To the extent that any matter brought to a vote by the association results in a tie between the ballots cast, then the president of the Association shall cast the deciding vote to break any such tie.
B. COVENANT FOR MAINTENANCE ASSESSMENT
Section 1: Creating of the Lien and Personal Obligation of Assessments:
The Developer, for each lot owned by them on said plan, hereby covenant, and each owner of any lot by the acceptance ofa deed thereto or the inheritance of the record title thereto, whether or not it shall be expressed in the devise, deed or other conveyance, shall be deemed to covenant and agree to pay to the Ian’s Way Homeowners Association.
(1) Annual Assessments or Charges, and
(2) Special Assessments for capital improvements: both of such assessments to be fixed, established and collected from time to time as hereinafter provided. Both the annual and/or the special assessments, together with interest thereon and costs of collection thereof as hereinafter provided, shall be a charge on the land and shall be a continuing lien upon the property against which each such assessment is made. Each such assessment, together with such interest thereon and cost of collection thereof, as hereinafter provided, shall also be the personal obligation of the person who was the owner of such property at the time when the assessment fell due.
Section 2: Definition of “Common Area” and “Common Amenities”: The common area shall be defined to consist of that area as shown on the above referenced Plan as “open space” or “common area” on the above referenced plan. “Common Amenities” shall be defined to consist of the two (2) “shared wells”, together with related well housings, hydropneumatics
tanks, pressurized pump systems, water lines, and related infrastructure, the five foot (5′) walking path and the detention pond
Section 3: Purpose of Assessment: The assessments levied by the association shall used exclusively for the maintenance and improvement of the common areas and common amenities as provided in the conditions of subdivision approval, to include, but not limited to, the operation and maintenance of the two (2) common wells and water system related thereto, the field or meadow, the walking paths, the common area drainage system, to include the exercise of rights to maintain the drainage retention pond shown of said plan within the said subdivision, and the stone walls that form part of the boundary of the subdivision, and incidental facilities related thereto, including but not limited to the payment of taxes, if any, insurance, any repairs, replacement and additions thereon.
Section 4: Basis of Annual Assessments: Upon the initial conveyance from the Developer to a buyer or other grantee, said grantee shall pay the initial annual assessment in the amount Six Hundred Dollars ($600.00) per lot for the annual assessment for the year of each initial conveyance. From and after December 31, 2003, the annual assessment may be increase
or decreased by the vote of the membership of the Ian’s Way Homeowners Association.
In addition to the amount of the Annual Assessment set forth herein, there shall be added to each such annual payment a surcharge in the amount often percent of the annual assessment Such surcharge…. shall be held in a separate and distinct account entitled “Capital Reserve” to be held and retained by the Association. the use of which shall be solely and exclusively dedicated to the purpose of making repairs and/or improvements to the common area and common amenities as set forth herein. In no event shall the capital reserve be expended for annual operation and maintenance of the common areas or common amenities.
Section 5: Special Assessments for Capital Improvements: In addition to the
annual assessments and capital reserve authorized and established by Section 4, in the event that there is any significant damage or other emergency situation which requires a special assessment for capital improvements in an amount above and beyond that set forth in the reserve established in accordance with Section + above. the Association may levy in any assessment year a special assessn1ent. applicable to that year only. for the purpose of providing for the payment of such unexpected repairs or improvements relative to the common area or common amenities. Any special assessment authorized by the Association shall be approved with a two-thirds (2/3) majority of the votes of the members of the association who are voting in person or by proxy at a meeting duly called for the purpose of determining any levy for special assessments, written notice of which shall be sent to all members at least thirty days in advance by certified mail return receipt requested, which notice shall set forth the purpose of said meeting.
Section 6: Effect of Non-payment of Assessments: In the event that the assessments are not paid on the date when due. then such assessment shall become delinquent and shall, together with such interest thereon and cost of collection thereof as hereinafter provided, thereupon become a continuing lien on the property which shall bind such property titled by the owner of record, or its heirs, successors or assigns.
If the assessment is not paid within thirty (30) days after the delinquency date, the assessment shall bear interest from the date of delinquency at the rate of twenty four percent (24%) the assessment as above provided and a reasonable attorney’s fee to be fixed by the court together with the costs of the action.
Section 7: Subordination of the Lien to Mortgagees: The lien for the assessments provided for herein shall be subordi11ated to the lien of any mortgage or mortgages now or hereafter placed upon the properties subject to assessment.
Section 8: Procedure for foreclosure of lien for the payment of assessments: The lien provided for hereinabove may be enforced., in case of non-payment for one year from the due date of the assessment, by sale by public auction on the lot owner(s) premises, first complying with the statute relating to the foreclosure of mortgages by the exercise of the power of sale in a New Hampshire form of power of sale mortgage deed pursuant to Chapter 479 of the Revised Statues Annotated, as amended. The recording of an affidavit of such sale together with the associations deed to the purchaser(s) shall forever bar the delinquent lot owner and his successors in record title, from all right and interest in said lot, at law or in equity. Similarly, as
above, the lien sought to be foreclosed shall include the aforesaid interest and legal costs and attorney’s fees incurred as a result of the foreclosure proceedings.
C. GENERAL PROVISIONS
Section 1: Duration: The covenants and restrictions of this Declaration shall run with and bind the land and shall inure to the benefit of, and be enforceable by, the Ian’s Way Homeowners Association or any owner of a lot in said subdivision, and shall be perpetual and unanimous consent of each of the owners of record of the lots in the subdivision and indefinite, except that at the option of the Ian’s Way Homeowners Association and the unanimous consent of each of the owners of record of the lots in the subdivision the covenants may be terminated and deemed null and void upon the acceptance by the City of Rochester of another scheme of organization, or change in title, to the common area and common amenities as
shown on said plan in a manner that satisfies the common area responsibilities set forth herein.
Section 2: Notices: Any notice required to be sent to any member or owner under the provisions of this Declaration shall be deemed to have been properly sent when mailed via certified mail, postpaid, to the last-known address of the person who appears as member or owner on the records of the Ian’s Way Homeowners at the time of such mailing.
Section 3: Invalidity: If any easement, covenant, restriction, agreement. or charge herein contained should be held invalid by any court. such invalidity shall in no way affect any other easement, covenant, agreement or charge herein.
D. ADDITIONAL POWERS OF ASSOCIATION
In addition to the specific powers and obligations of the Association to maintain and improve the common area and/or common amenities of the development, the Association shall have the following additional powers to be exercised on behalf of the lot owners.
1. As owners of said common area and common amenities to take any necessary action to prevent the unauthorized use thereof by persons without the right to so use it.
2. To regulate and limit in a reasonable manner consistent with the peaceful use and enjoyment of all lot owners of their properties any use of the common area and/or common amenities by any person or thing.
3. To make and enforce any other reasonable rules and regulations for the use of the common area and/or common amenities.
All of the above additional powers shall be exercised only pursuant to votes of the Association at a regular meeting. except in cases of emergency.
