Declaration of Condominium
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DECLARATION
OF CONDOMINIUM
OF
I. DEFINITIONS
The terms herein shall have the meaning stated The Condominium Act, and as follows, unless the context otherwise requires.
- Association means the WINDSOR MEADOWS
CONDOMINIUM,
- Common Area means the area, facilities (including the common septic system) and all portions of the Condominium other than Units and the Limited Common Areas.
- Limited Common Areas means those areas reserved for the exclusive use of one or more of the Units but less than all of the units.
- Common Expenses include: All expenditures lawfully made or incurred by or on behalf of the Unit Owners’ Association, together with all funds lawfully assessed for the creation and/or maintenance of reserves pursuant to the provisions of the Condominium instruments.
- Singular, plural, gender: Whenever the context so permits, the use of the singular the plural, and the use of any gender, shall be deemed to include all genders.
See Appendix B
II.
LEGAL DESCRIPTION BY METES
III.
DESCRIPTION OF THE BOUNDARIES OF THE UNITS INCLUDING THE HORIZONTAL
BOUNDARIES AS
The Condominium
as now declared consists of two buildings each building containing 6 condominium
units and 6 one car garages together with the existing single family residence
on the property designated as Unit 61. The
units to be built as numbered consecutively 1 through 12 as shown on buildings
one and two as shown on the below reference site plans.
The units are shown on a plan entitled “Proposed Site Plan – Phase I
& II Household Realty Trust Tax Map 4, Block 1 Lot 40” recorded in the
Rockingham County Registry of Deeds as Plan #D-26807, sheet 3 of 6.
See also “Site Plan Units #7 - #12
In each Unit the vertical boundaries shall be the interior face of the studding of the exterior walls and the interior face of the cement basement walls of each such Unit. The horizontal boundaries of each Unit shall be the lower surface of the ceiling joist and the upper surface of the basement and garage floor of each said unit. For purposes hereof, a wall, in addition to exterior walls of the building, shall be considered an exterior wall of the Unit if it is a wall which divides one Unit’s garage from another Unit or Limited Common Area, even if it is not an exterior wall of the building. The Units also include any furnace, windows, doors, door frames, exhaust fans and air conditioners as shown on said floor plans. The exact horizontal and vertical boundaries for each Unit are shown on the floor plans referred to above as hereinbefore specifically defined.
IV. DESCRIPTION OF THE LIMITED COMMON AREAS, SHOWING OR DESIGNATING THE UNITS TO WHICH EACH IS ASSIGNED.
Each unit shall have a limited common area extending 25 feet from the rear wall of each unit. Said limited common area is parallel to the rear wall of each unit. (including the garage).
V.
DESCRIPTION OF
The Declarant reserves the right to assign parking spaces within the portions of the Common Area, not within the boundaries of the convertible areas shown on the site plan, as driveways; provided that such assignments will be made in the driveway serving the unit to which the space is assigned.
VI.
ALLOCATION TO EACH
Each unit shall have an undivided 1/13th interest in the common areas.
VII.
STATEMENT OF PURPOSES, USE
1.
The Declarant shall have the right to transact any business on the
Condominium property necessary to consummate sales of Condominium Units,
including, but not limited to the right to maintain models, having signs
identifying Units, maintaining employees in the offices, use of the Common Areas
and facilities on the Condominium property, and to show Units for sale.
All furniture and furnishings and equipment in the model Units, sings and
all items pertaining to sales shall not be considered Common Areas and
facilities and shall remain the property of the Declarant.
In the event there are unsold Condominium Units, Declarant’s right as
the owner of said unsold Units shall be the same as all other Unit Owners in the
Condominium and the Declarant, as the
Owner of the Condominium Units, shall contribute to the common expenses in the
same manner as other Condominium Unit Owners and shall have a vote in the
Association for each unsold Condominium Unit.
2. Except as herein provided, no Unit shall be used for any purpose except as a single family residence with a home office to the extent such accessory use is permitted by the Brentwood Zoning Ordinance. No building shall, except as herein provided, be used for any purpose which does not comply with the provisions of the Declaration and all applicable state and local laws, ordinances and regulations.
3. Nothing shall be done or kept in any Unit or Common Area which will increase the rate of insurance in the Common Areas without the prior written consent of the Board of Directors. No Owner shall permit anything to be done or kept in his Unit or any part of the Common Areas which will result in the cancellation of insurance of any Unit or any part of the Common Areas or which would be in violation of any law. No waste will be permitted in the Common Areas except in closed containers.
4. No signs of any kind shall be displayed to the public view on or from any Unit without the prior consent of the Board of Directors.
5. No animals. Livestock or poultry or any kind shall be raised, bred or kept in any Unit or in the Common Area or Limited Common Area without the express written permission of the Board or Directors or Manager, as the case may be. Household pets may be allowed by written permission of the Board of Directors.
6. No noxious of offensive activities, including but not limited to changing motor vehicle fluids, shall be carried on in any Unit, the Common Area or Limited Common Area, nor shall anything be done therein which may become an annoyance or nuisance to the other Unit Owners.
7. Nothing shall be altered or constructed or removed from the Common Area of Limited Common Area except upon the written consent of the Board of Directors. Any unit owner who shall desire o undertake to install or maintain landscaping shall apply to the Board of Directors for its consent to such action. The Board of Directors shall be authorized to grant such consent at its discretion and upon such terms and conditions, as it shall deem advisable.
8. There shall be no violation of the rules of the use of Units, Common Area or Limited Common Area as adopted by the Board of Directors and furnished in writing to the Owners, and the Board of Directors are authorized to adopt such rules.
9. The Limited Common areas associated with each unit as shown on the Site Plan shall be used by the unit owner solely for uses customarily associated with single family residential uses, including mowing and yard maintenance, barbecues and lawn furniture. Any use other than such mowing and yard maintenance, barbecues and lawn furniture shall be subject to the approval of the Declarant or the Board of Directors of the Association and is such uses or any other permitted uses shall, in the judgment of the Declarant or the Board of Directors, become a nuisance or unreasonable disturbance, the Declarant or the Board of Directors shall have the right and authority to require that such uses cease or be abated. If in the judgment of the Declarant or the Board of Directors the said limited common yard area(s) are not being properly maintained, the Declarant or the board of Directors shall have the right and authority to engage in such maintenance and assess the unit owner for the costs thereof.
10. Insofar as may be necessary the Declarant and persons that it may select shall have the right of ingress and egress over, upon and across the Common Area and Limited Common Area and the right to store materials thereon and to make such other use thereof as may be reasonable, necessary and incidental to construction, and complete development and sale of the project, but the Declarant and the persons to whom it has granted this permission shall not unduly interfere with the Unit Owners or persons living in the Units and their rights to use the Common Areas and facilities.
11. An Owner shall not paint or otherwise decorate or change the appearance or the type of exterior siding of any portion of the exterior of any of the building(s) without the prior consent of the Board of Directors, such approval not be unreasonable withheld.
12. No Unit Owner shall make any alterations of his Unit, nor construct any new structure or appurtenance, or make any improvements to the building without the consent of all of the Unit Owners. Provided, however, that any Unit Owner shall have the right to make interior decorating improvements or any interior changes which do not affect any facilities which are shared with the other Units.
13. The Board of Directors shall contract for curbside trash pick up for the Condominium. The expenses thereof shall be a common expense.
14. No unit may be altered so as to create more than 2 bedrooms
15. No unit shall be rented for a term of less than one year and all rental shall be first approved by the Board of Directors; in no event shall the number of rental units allowed by the Board of Directors exceeded 40% of the total declared units.
16. No permanent installation of a radio, television and/or cable receiving antenna or dish shall be constructed on the exterior of any building or on any portion of any unit except upon approval of the Board of Directors.
17. No exterior lighting shall be permitted of such intensity that would unreasonably disturb owners of other lots subject to these restrictions.
18. The following items may not be maintained in open storage: unregistered vehicles, boats, campers, trailers, machinery, supplies or materials.
19. There shall be no obstructions of the Common Areas, except in the case of designated storage areas, if any. Nothing shall be stored in the Common Area without the prior consent of the Board of Directors.
20. All rights and powers reserved to the Board of Directors shall be vested in the Declarant until the Condominium is turned over to the Unit Owners’ Association, which shall occur after 75% of the units are sold.
VIII.
MANNER OF DETERMINING APPROPRIATE ACTION FOLLOWING DAMAGE TO ANY
PORTION OF THE CONDOMINIUM BY
1. Common Area and Limited Common Area: If the casualty loss is to a Common Area or Limited Common Area, it shall be reconstructed or repaired at the expense of the Association, or those units to which a Limited Common Area appertains.
2. Unit: If the casualty loss is to a Unit, it shall be reconstructed or repaired at the expense of the Unit Owner. Such reconstruction or repair shall be commenced within 60 days of the loss and completed within 120 days of the loss provided, however, that the Owner shall have the option not to reconstruct but if he does not do so he will, within 60 days of the loss, convey his interest in the Unit and Common and Limited Common Areas to the Association.
3. Any reconstruction or repair to a Unit shall be identical to the previous design and dimensions of the original unit.
4. Estimate of Costs: Immediately after determination to rebuild or repair damaged property for which the Association has the responsibility of reconstruction and repair, the Association shall obtain reliable and detailed estimated of the cost to rebuild or repair.
5.
Assessments: If the proceeds of insurance are not sufficient to
defray the estimated cost of reconstruction and repair, or upon completion of
reconstruction and repair, the funds for the payment of the cost thereof
are insufficient, assessments shall be made against the Unit Owner(s) who own
the damaged Unit(s), and against all Unit Owners in case of damage to the Common
Area or the Units(s) to which a Limited Common Area appertains in case of damage
to a Limited Common Area in sufficient amount to provide funds for the payment
of such cost. Such assessments
against Unit
Owners for damage to Units, shall be in proportion to the cost of reconstruction
and repair of their respective units. Such
assessments on account of damage to Common Areas shall be in proportion to the
Owner’s share of the Common Areas or Limited Common Areas.
6. Construction Funds: The funds for payment of costs of reconstruction and repair after casualty, which shall consist of proceeds of insurance held by the Association or by the Insurance Trustee appointed by the Association and funds collected by the Association from assessments against Unit Owners shall be disbursed in payment of such costs in the following manner:
A. If the insurance proceeds and the total assessments made by the Association in order to provide funds for payment of costs of reconstruction and repair which is the responsibility or the Association is more then Five Thousand ($5,000.00) Dollars, then the sum shall be paid by the Association to an individual in trust, and said individual shall be appointed by the Association for this specific purpose and shall be known as the Insurance Trustee. In all other cases the Association shall hold the sums paid upon such assessments and disburse the same in payment of costs of reconstruction and repair.
B. The proceeds of insurance collected on account of casualty and the sums collected from Unit Owners as assessments on account of casualty shall constitute a construction fund from which the Association or the Insurance Trustee, as the case may be, shall disburse in payment for cost of reconstruction or repair in the following manner:
i. The portion of insurance proceeds representing damage for which the responsibility or reconstruction and repair lies with the Unit Owner shall be paid by the Association or the Insurance Trustee, as the case may be, to the Unit Owner, or if there is a mortgage endorsement as to said Unit, then to the Unit Owner and the mortgage jointly who may use proceeds as they may be advised.
ii. If the amount of the estimated costs or reconstruction and repair which is the responsibility of the Association is less than Five Thousand ($5,000.00) Dollars, then the construction funds shall be disbursed in payment of such costs upon the order of the Association; provided, however, that upon request by a mortgage which is the beneficiary of an insurance policy, the proceeds of which are included in the construction fund, such funds shall be disbursed in the manner hereinafter provided for the reconstruction and repair of damage in excess of Five Thousand ($5,000.00) Dollars.
iii. If the amount of the estimated costs of reconstruction and repair which is the responsibility of the Association is more than Five Thousand ($5,000.00) Dollars, then the construction fund shall be disbursed by the Insurance Trustee in payment of such costs in the manner required by the Board of Directors of the Association and upon approval of an architect qualified to practice in the State of New Hampshire and employed by the Association to supervise the work and upon approval of any mortgage request notice of such payments.
iv. Surplus. It shall be presumed that the first monies distributed in payment of the costs or reconstruction and repair shall be from the insurance proceeds. If there is a balance in the construction fund after payment of all costs of reconstruction and repair for which the fund was established, such balance shall be distributed to the beneficial Owners of the funds in the proportion in which they contributed.
v. Certificate. Notwithstanding the provisions herein, the Insurance Trustee shall not be required to determine whether or not sums paid by the Unit Owners upon assessment shall be deposited by the Association with the Insurance Trustee, nor to determine whether disbursements from the construction fund are to be upon the order of the Association or an architect or otherwise nor to determine whether a disbursement is to be made from the construction fund nor to determine the payee nor the amount to be paid, nor to determine whether surplus fund to be distributed are less than the assessment paid by the Owner. Instead, the Insurance Trustee may rely upon a certificate of the association made by its president and secretary as to any or all such matters and stating that the sums to be paid are due and properly payable and stating the name of the payee and the amount to be paid; provided, that when a mortgage is herein required to be named as payee, the Insurance Trustee shall also name the mortgage as payee; and further provided that when the Association, or a mortgage which is the beneficiary of an insurance policy, the proceeds of which are included in the construction fund, so requires, the approval of an architect named by the Association shall first be obtained by the Association.
IX. EASEMENTS
Easements are reserved to the Condominium as may be required for utility services, specifically including the common septic system (including replacement systems), pond, drainage structures, dry hydrant and wells and water supply systems, in order to adequately serve the property. There is a 15 foot wide Drainage and maintenance easement as shown on the site plan adjacent to both sides of the roads within the condominium. Additionally, the Declarant has reserved Conservation Easements and Conservation Restrictions over a portion of the Common Area as shown on the site plan. Also reserved are easements for future water supply, water quality; and replacement septic systems as shown on said plan. The Conservation Easements and Conversation Restrictions have been recorded at the Rockingham County Registry of Deeds.
X.
CHANGES IN PRICE – ALERATION OF
To meet the particular requirements of prospective purchasers or to allow for the changes in price of labor and material, and for other reasons, the Declarant reserves the right, so long as it is the Owner of any unsold Units, to change the price of any such Units. No change in price of a Unit, however, will very the estimated common charges for the unit or its percentage of interest in the common elements, or its membership in the Association.
The Declarant also reserves the right to change the design and arrangement within any Unit, so long as it owns the Unit so altered. Such change shall neither increase the number of Units, nor alter the boundaries of the common elements, nor create a unit containing more than 2 bedrooms. Any such change shall be reflected by an amendment to this Declaration which may be executed by the Declarant alone, notwithstanding the provisions of Section XI of this Declaration.
XI. AMENDMENTS.
This Declaration of Condominium and By-Laws of the Association except as otherwise provided herein, may be amended by a vote in accordance with paragraph XI of the said By-Laws and by an instrument in writing, signed, acknowledged and recorded as provided by New Hampshire R.S.A. 356-B:11, and such amendment shall be effective upon recording in the Office of the Registry of Deeds in County, State of New Hampshire, subject to the following:
(1) Notice: Notice of the subject matter of a proposed amendment shall be included in the notice of any meeting at which the proposed amendment is to be considered.
(2) Pro viso: No amendment shall discriminate against any Unit Owner, the Declarant or against any Unit or class or group of Units unless the Unit Owners effected shall consent; and no amendment shall change any Unit or share of Common Areas appurtenant to it, or increase an Owner’s share in the Common Areas, unless all the recorded Owners of the Units concerned and all the record Owners of mortgages thereon, shall join in the execution of the amendment, however, anyone dealing with the Association or attempting to establish title to a particular Unit, in the absence of actual knowledge of discrimination on the part of the Association of Unit Owners may conclusively reply upon the validity of legality of any amendment to this Declaration recorded in the County Registry of Deeds if said amendment is signed, acknowledged and recorded in compliance with Article XI of this Declaration. The amendment of this Declaration shall not make any change in the section entitled “insurance” or in the section entitled “Manner of determining appropriate action following damage to any portion of the Condominium by fire or other casualty” unless all the Owners and all the record Owners of mortgages on Units in the Condominium shall join in the execution of the amendment.
XII.
MAINTENANCE, ALTERATION
Responsibility for the maintenance of the Condominium property and restrictions upon the alteration and improvements thereof shall be as follows:
(1) By the Association: The Association shall maintain, repair, and replace all portions of the Common Areas at the Association’s expense, specifically including the sewage pumps and support systems therefore, the septic systems, the pond and drainage structures (including catch basins and grease traps), the dry hydrant, the wells (one well serves three units, however maintenance, repair and replacement of the wells, pumps and pipes is a common expense shared by all unit owners), and water supply systems and the internal service road and common parking areas.
(2) By the Unit Owner: The Unit Owner shall maintain, repair, and replace all portions of his individual Unit.
(3) Unit Alteration and Improvement: There shall be no change in the exterior design or color scheme of any Unit without the written consent of the Association.
(4) Common Areas, Alteration and Improvement: After completion of the improvements included in the Common Areas which are contemplated by this Declaration (including the addition of a dumpster in the discretion of the Board of Directors), there shall be no alteration nor further improvement of the Common Areas without prior approval in writing by the record Owners of all of the Units; provided, however, that any alteration or improvement of the Common Areas bearing the approval in writing of fifty percent (50%) or more but less than seventy-five percent (75%) of the Unit Owners, which does not interfere with the rights of any Owners without their consent, may be done if the Owners who do not approve are relived from the cost thereof. The share of any cost not so assessed shall be assessed to the other Unit Owners in the ratio which their shares in the Common Areas bear to each other. Furthermore, the Unit Owners of seventy-five percent (75%) or more of the percentage interest in the Common Areas as established in paragraph VI above, may agree to make improvements in the Common Areas and facilities and assess the cost thereof to all Unit Owners as a common expense, but if such improvement shall cost in excess of ten percent (10%) of the value of the Condominium, and Owner not so agreeing may apply to the Superior Court of Rockingham County and upon notice to the organization of Unit owners, the Court shall direct the purchase of the dissenting Unit holder’s interest by the organization of Unit Owners at the fair market value thereof as approved by the Court. The cost of any such purchase shall be a common expense.
XIII. ASSESSMENTS.
The making and collection of assessments against the Unit Owners for common expenses shall be pursuant to the By-Laws and subject to the following provisions:
1. Share of Common Expense: Each Unit Owner shall be liable for a proportionate share of the common expenses and shall share in the common surplus, such shares being the same as the undivided share in the Common Area which is appurtenant to the Unit owned by him, as set forth in Article VI. Provided, however, that if a Unit is declared to be untenantable for a period of sixty (60) days, the common expense attributed to such Unit shall be abated by the Board of Directors. During such period of abatement the common expense attributable to such Unit shall be prorated and borne amount the remaining tenantable Units in accordance with their proportionate share of the common expense.
2. Interest, Application of Payments: Assessments paid on or before ten (10) days after the date when due shall not bear interest, but all sums not paid on or before ten (10) days after the date due, shall bear interest at the rate of eighteen (18%) percent per annum from the date when due until paid. All payments upon account shall be first applied to interest and then to assessment.
3. Lien for Assessment: The lien for unpaid assessments as provided in New Hampshire Revised Statutes Annotated Chapter 356-B:46 shall also secure reasonable attorney’s fees incurred by the Association to the collection of such assessment in the enforcement of such lien. Said lien may be foreclosed by following the statutory procedure for foreclosing a mortgage; provided the such lien shall not be construed as taking priority over a mortgage duly recorded prior to the recordation of the lien.
4. Rental Pending Foreclosure: In any foreclosure of a lien for assessment as provided by said New Hampshire Revised Statutes Annotated Chapter 356-B:46, the Owner of the Unit subject to the lien shall be required to pay a reasonable rental for the Unit and the association shall be entitled to the appointment of a receive to collect the same.
5. Any mortgage bank which acquires its title as a result of foreclosure or conveyance in lieu of foreclosure on a Unit, shall not be liable for the payment of ant assessment unless it is using or leasing the Unit, or until the expiration of a six (6) month period from the date the bank takes fee simple title, which ever is sooner. Such mortgage bank shall not be responsible for any lien for assessments which arose prior to such foreclosure or conveyance in lieu of foreclosure.
6. In the event the Unit Owner’s Association is unable to collect unpaid assessments due to the operation of the provisions of this Section XIII or the By-Laws, the Board of Directors may vote to include some or all of these amounts in the next annual budget as a common expense to be recovered from all Unit Owners.
7. The Declarant shall not be liable for any condominium fees on unsold units until an occupancy permit has been received after which the Declarant shall pat only that portion of the monthly fee attributable to insurance and reserves for replacement of the common elements. Provided further that if the Declarant is the owner of unsold units which are occupied as residences than all fees shall be due.
XIV. ASSOCIATION.
The operation of a Condominium shall be by an unincorporated or incorporated Association which shall be organized and shall fulfill its functions pursuant to the following provisions:
1. The name of the Association shall be the WINDSOR MEADOWS CONDOMINIUM ASSOCIATION.
2. The Association shall have all of the powers and duties as set forth in the Condominium Act except as limited by this Declaration and By-Laws and all of the powers and duties reasonable necessary to operate the Condominium as set forth in the Declaration and By-Laws and as they may be amended from time to time.
3. Membership in the Association:
(a) Qualification: The members of the Association shall consist of all the record Owners of the Units.
(b)
Change of Membership: Change
of membership in the Association shall be established by recording in the
Registry of Deeds for
(c) Voting Rights: A member of the Association shall be entitled to case a vote for each Unit owned in the percentage attributed to each Unit. Where there is more than one recorded Owner, any of such persons may attend any meeting of the Association, but it shall be necessary for those present to act unanimously in order to cast the votes to which they are entitled. If a Unit is owned by a corporation or a trust, any individual representing such entity, whose authority is in a form acceptable to the secretary, may cast a vote for each Unit owned. The Declarant shall be entitled to vote with respect to any Unit(s) owned by the Declarant.
(d) Restraint upon Assignment of Shares in the Association. The share of a member in the funds and assets of the Association cannot be assigned, hypothecated or transferred in any manner except as an appurtenance to his Unit.
4. Board of Directors: The affairs of the Association shall be conducted by a Board of Directors, who shall be designated in the manner provided in the By-Laws.
5. Indemnification: Every director and every officer of the Association shall be indemnified by the Association against all expenses and liabilities including counsel fees, reasonable incurred or imposed upon him in connection with any proceeding to which he may be a party or in which he may become involved, by reason of his being or having been a director or officer of the Association, or any settlement thereof, whether or not he is a director or officer at such time the expenses are incurred, except in such cases wherein the director or officer is adjudged guilty of willful misfeasance or malfeasance in the performance of his duties; provided that in the event of a settlement the indemnification hereby shall apply only when the Board of Directors approves such settlement and reimbursement as being in the best interest of the Association. The foregoing right of indemnification shall be in addition to and not exclusive of all other rights to which such director or officer may be entitled.
6. Limitation upon Liability of the Association: Notwithstanding the duty of the Association to maintain and repair parts of the Condominium property, the Association shall not be liable for injury or damage, other than the cost of maintenance and repair, caused by any latent condition of the property to be maintained and repaired by the Association.
7. By-Laws: The By-Laws of the Association shall be in the form attached hereto as Appendix “A”.
8. Property and Trust: All funds and title to all properties acquired by the Association and the proceeds thereof, shall be held in trust for the membership in accordance with the provisions of this Declaration of Condominium and the By-Laws.
XV. INSURANCE.
A. The Board of Directors of Managing Agent on behalf of the Association shall obtain:
1. A Master Casualty policy affording fire and extended coverage in an amount equal to the full replacement value of the structure(s) that comprise the Common Areas.
2. A Master Liability policy in an amount equal to at least $1,000,000.00/$5,000,000.00 covering the Unit Owners’ Association, the Board of Directors and all persons acting or who may come to act as agents or employees of any of the foregoing with respect to the Condominium, and all Unit Owners and other persons entitled to occupy any Unit or other portion of the Condominium.
B. The Unit Owners shall be responsible for obtaining his own insurance on his individual Unit and the contents thereof which insurance may be provided through a Master policy.
XVI. EMINENT DOMAIN.
A. If a Unit is acquired by eminent domain, or if part of a Unit is acquired by eminent domain leaving the Unit Owner with a remnant which may not practically or lawfully be used for any purpose permitted by the Declaration, the award shall compensate the Unit Owner for his Unit and its common element interest, whether or not any common element interest is acquired. Upon acquisition, unless the decree otherwise provides, that Unit’s entire common element interest, votes in the Association and common expense liability are automatically reallocated to the remaining Units in proportion to the respective interests, votes and liabilities of those Units prior to the taking, and the Association shall promptly prepare, execute and record an amendment to the Declaration reflecting the reallocations. Any remnant of a Unit remaining after part of a Unit is taken under this paragraph is thereafter a common element.
B. Except as provided in paragraph A above, if part of a Unit is acquired by eminent domain, the award shall compensate the Unit Owner for the reduction in value of the Unit and its common element interest. Upon acquisition, (1) that Unit’s common element interest, votes in the Association and common expense liability are reduced in proportion to the reduction in the size of the Unit, or on any other basis specified in the Declaration, and (2) the portion of common element interest, votes and common expense liability divested from the partially acquired Unit are automatically reallocated to that Unit and the remaining Units in proportion to the respective interests, votes and liabilities of those Units prior to the taking, with partially acquired Unit participating in the reallocation on the basis of its reduced interests, votes and liabilities.
C.
If part of the common elements is acquired by eminent domain, the
award shall be paid to the Association. The
Association shall divide any portion of the award not used for any restoration
or repair of the remaining common elements among the Unit Owners in proportion
to their respective common element interest before the taking, but the portion
of the award attributable to the acquisition of a limited common element shall
be equally divided amount the owners of the Units to which that limited common
element was allocated at the time of acquisition, or in such other manner as the
Declaration may provide.
The court decree shall be recorded in every county in which any portion of the
condominium is located.
XVII. TERMINATION OF CONDOMINIUM.
A. Except in the case of a taking of all the Units by eminent domain (Paragraph XVI), a Condominium may be terminated only after a substantial destruction thereof and by agreement of Unit Owners or Units to which at least eighty percent (80%) of the votes in the Association are allocated.
B. An agreement of Unit Owners to terminate a Condominium must be evidenced by their execution of a termination agreement or ratifications thereof. If pursuant to a termination agreement, the real estate constituting the Condominium is to be sold following termination, the termination agreement shall set forth the terms of the sale. A termination agreement and all ratifications thereof shall be recorded in every county in which a portion of the Condominium is situated and effective only when recorded.
C. The Association, on behalf of the Unit Owners, may contract for the sale of the Condominium, but the contract is not binding on the Unit Owners until approved pursuant to Paragraphs A and B hereof. If the real estate constituting the Condominium is to be sold following termination, title to that real estate, upon termination, vests in the Association as trustee for the holders of all interests in the Units. The Association thereafter has all powers necessary and appropriate to effect the sale. Until the sale has been concluded and the proceeds thereof distributed, the Association continues in existence with all powers in had before the termination. Proceeds of the sale shall be distributed to Unit Owners and lien holders as their interests may appear, in proportion to the respective interests of Unit Owners as provided in Paragraph F hereof. Except as otherwise specified in the termination agreement, as long as the Association holds title to the real estate, each Unit Owner and his successors in interest have an exclusive right to occupancy of the portion of the real estate that formerly constituted his Unit. During the period of such occupancy, each Unit Owner had his successors in interest remain liable for all assessments and other obligations imposed on Unit Owners by this Act of the Declaration.
D. If the real estate constituting the Condominium is not to be sold following the termination, title to the real estate, upon termination, vests in the Unit Owners as tenants in common in proportion to their respective interests as provided in Paragraph F hereof. As long as the tenancy in common exists, each Unit Owner and his successors in interest have an exclusive right to occupancy of the portion of the real estate that formerly constituted his Unit.
E. Following termination of the Condominium, and after payment of or provision for the claims of the Association’s creditors, the assets of the Association shall be distributed to Unit Owners in proportion to their respective interests as provided in Paragraph F hereof. The proceeds of sale described in Paragraph C hereof an held by the Association as trustee are not assets of the Association.
F. The respective interests of Unit Owners referred to in Paragraphs C, D and E above are as follows:
1. Except as provided in Paragraph 2, the respective interests of Unit Owners are the fair market values of their Units, limited common elements and common element interests immediately before the termination, as determined by one or more independent appraisers selected by the Association. The decision of the independent appraisers shall be distributed to the Unit Owners and becomes final unless disapproved within thirty (30) days after distribution by Unit Owners of Units to which twenty-five percent (25%) of the votes in the Association are allocated. The proportion of any Unit Owner’s interest to that of all Unit Owners is determined by dividing the fair market values of all the Units and common elements.
2. If any Unit or any limited common element is destroyed to the extent that an appraisal of the fair market value thereof prior to destruction cannot be made, the interests of all Unit Owners are their respective common element interests immediately before termination.
G.
Foreclosure or enforcement of a lien or encumbrance against the
entire Condominium does not of itself terminate the Condominium and foreclosure
or enforcement of a lien or encumbrance against portion of the Condominium,
other than withdrawable real estate, does not withdraw that portion from the
Condominium. Foreclosure or
enforcement of a lien or encumbrance against withdrawable real estate does not
of itself withdraw that real estate from the Condominium, but the person taking
title thereto has the right to require from the Association, upon request, an
amendment excluding the real estate from the Condominium.
Last Modified 06/20/2006