DECLARATION OF COVENANTS For REDFIELD ESTATES
(Important note: This document was transcribed from an original document. For legal purposes, please refer to the document as recorded in the Rockingham County Registry of Deeds)
(as recorded in the Rockingham County Registry of Deeds, Book 2395, Page 1725 on August 19th, 1981 at 10:27 AM)
(as amended and recorded in the Rockingham County Registry of Deeds Book 2745 Page 0288 on June 15th, 1988 at 11:09 AM)
This Declaration made this 23 day of July, 1981 by 101 Realty, Inc., hereinafter called “Developer”:
WHEREAS, Developer is the owner of the real property described in Article II of this Declaration and desires to create thereon a residential community with a community water system and permanent open spaces and other common facilities for the benefit of said community; and
WHEREAS, Developer desires to provide for the preservation of the values and amenities in said Community, and for the maintenance of said community water system, open space and other common facilities; and, to this end, desires to subject the real property described in Article II together with such additions as may hereafter be made thereto, to the covenants, restrictions, easements, charges and liens, hereinafter set forth, each and all of which is and are for the benefit of said property and each owner thereof; and
WHEREAS, Developer has deemed it desirable, for the efficient preservation of the values and amenities in said Community, to create an agency to which should be delegated and assigned the powers of maintaining and administering the community properties and facilities and administering and enforcing the covenants and restrictions, and dispersing the assessments and charges hereinafter created; and
WHEREAS, Developer has incorporated under the laws of the State of New Hampshire as a non-profit corporation, the REDFIELD ESTATES ASSOCIATION, for the purpose of exercising the functions aforesaid;
NOW THEREFORE, the Developer declares that the real property described in Article II, and such additions as may hereafter be made pursuant to Article II hereof, is and shall be held, transferred, sold, conveyed and occupied subject to the covenants, restrictions, easements, charges and assessments hereinafter set forth.
Section 1. The following words when used in this Declaration or any Supplemental Declaration (unless the context shall prohibit) shall have the following meanings:
a. “Association” shall mean and refer to the REDFIELD ESTATES ASSOCIATION.
b. “The Properties” shall be as defined under Article II hereof.
c. “Common Properties” shall mean and refer to that area of land designated as Lot 99 on Plan No. D9867 at the Rockingham County Registry of Deeds, more fully described in Article II, Section 1. below, together with the accesses and rights of way as shown on said Plan, and all improvements, and personal property incident thereto, and shall also mean and refer to such additional areas of land as may be later declared Common Properties subject to said Declaration of Covenants. [Note: The REA later aquired an additional area sometimes referred to as 'lot 100' and 'lot 101' from the developer which was declared to be part of the "Common Properties".]
d. “Lot” shall mean and refer to any plot of land shown upon any recorded subdivision plan of The Properties with the exception of Common Properties as heretofore defined.
e. “Owner” shall mean and refer to the record owner, whether one or more persons or entities, of the fee simple title to any lot as defined above, notwithstanding any applicable theory of the mortgage, shall not mean or refer to a mortgagee unless and until such mortgage has acquired fee simple title pursuant to foreclosure or any proceedings in lieu of foreclosure.
f. “Member” shall mean and refer to all those Owners who are members of the Association as provided in Article III, section 1. hereof.
g. “Developer” shall mean and refer to 101 Realty, Inc., or a purchaser or assignee of 101 Realty, Inc. who acquires all or a portion of The Properties for development purposes, or a mortgagee of 101 Realty, Inc., or said purchaser or assignee, who acquires title to any portion of The Properties by foreclosure.
THE PROPERTIES SUBJECT TO THIS DECLARATION:
Section 1. Existing Property. The real property which is, and shall be, held, transferred, sold, conveyed and occupied subject to this Declaration is located in Derry, Rockingham County, New Hampshire, and is more particularly described as follows:
Lots 1 through 99 inclusive as shown on a plan entitled “Subdivision Plan of Land, Redfield Estates, Derry, NH” dated June 2, 1978, by Thomas F. Moran, Inc., surveyors, civil engineers, land planners, and recorded as Plan No. D9867 in the Rockingham County Registry of Deeds, Lots 1 through 98 inclusive each being a “Lot” as defined in Article 1, Section 1d above, and Lot 99 being “Common Properties” as defined in Article I, Section 1c. [Note: The REA later aquired an additional area sometimes referred to as 'lot 100' and 'lot 101' from the developer which was declared to be part of the "Common Properties".]
Section 2. Additions. Additional lands may become subject to this Declaration of Covenants in the following manner:
a. Upon approval in writing of the Association pursuant to a two-thirds vote of its Class A members, the Owner of the property who desires to add it to the scheme of this Declaration and to subject it to the jurisdiction of the Association, may file or record a Supplementary Declaration of Covenants and Restrictions, as described in Subsection b. hereof.
b. Any addition authorized under Subsection a. shall be made by filing in Rockingham County Registry of Deeds a Supplementary Declaration of Covenants which shall describe the additional property to which this Declaration shall apply, together with a Certificate of the Vote authorizing such addition.
c. Upon merger or consolidation of the Association with another association, its properties, rights and obligations shall be transferred to the surviving or consolidated association, or, alternatively, the properties, rights and obligations of another association may be added to the properties, rights and obligations of the Association as a surviving corporation pursuant to a merger. The surviving or consolidated association may administer the covenants and restrictions established by this Declaration together with the covenants and restrictions established upon any other properties as once scheme. No such merger or consolidation, hover, shall affect any revocation, change or addition to the covenants established by this Declaration except as hereinafter provided.
MEMBERSHIP AND VOTING RIGHTS IN THE ASSOCIATION:
Section 1. Membership. Every person or entity who is a record owner of a fee or undivided fee interest in any lot which is subject by this Declaration or supplement thereto to assessment by the Association shall be a member of the Association provided that any such person or entity who holds such interest merely as a security for the performance of an obligation shall not be a member.
Section 2. Voting Rights.
1. The Association shall have two classes of voting membership:
CLASS A. Class A members shall be all those owners defined in Section 1. with the exception of the Developer. Class A members shall be entitled to one vote for each lot with improvements in which they hold the interest required for membership in 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.
CLASS B. The Class B member shall be the Developer. The Class B member shall be entitled to three (3) votes for each lot with improvements in which it holds the interest required for membership in Section 1, provided that Class B membership shall cease and become converted to Class A membership as to a particular lot on either of the following dates:
a) On December 31, 1982.
b) When the Developer sells or transfers said lot to any person or entity not a Class B member.
2. Notwithstanding the above, all Class B membership in the Association shall terminate and automatically become converted to Class A membership when the total number of votes of Class A members equals the total number of votes of the Class B member, or December 31, 1982, the anticipated date of this occurrence, whichever is earlier.
3. Notwithstanding the above or any other provision of the Declaration of Covenants, as long as there is Class B membership in the Association or until after one (1) year from the date of incorporation of Redfield Estates Association, the Association may not acquire property, dedicate Common Properties other than said Lot 99 on Plan No. D9867 recorded in the Rockingham County Registry of Deeds together with the accesses and right of way as shown on said Plan, or amend the Declaration of Covenants without the prior approval of the Department of Housing and Urban Development.
4. Notwithstanding the above, no more than three votes may be cast with respect to any lot in which the Class B member holds an interest.
PROPERTY RIGHTS IN THE COMMON PROPERTIES:
Section 1. Members’ Easements. Subject to the provisions of Section 3, every Member shall have the following rights and easements in and to The Common Properties, and such easement shall be appurtenant to and shall pass with the title to every lot:
1. The right to connect to the community water system and draw water from the system for domestic use.
2. The right and easement of enjoyment in and to the recreational facilities, if any, located on the common properties.
Section 2. Title to Common Properties. The Developer may retain the legal title to The Common Properties until such time as it has completed improvements thereon, and until such time as, in the opinion of the Developer, the Association is able to maintain the same, but notwithstanding any provision herein, the Developer herby covenants, for itself, its successors and assigns that it shall convey The Common Properties to the Association, not later than December 31, 1982. Developer covenants that all improvements to The Common Properties shall be completed no later than said date of conveyance. The Developer shall have a right over and through said Common Properties and the right to store materials and equipment thereon until the Developer has completed construction of all houses on The Properties.
Section 3. Extent of Members’ Easements. The rights and easements of enjoyment set forth in Section 1. shall be subject to the following provisions:\
1. The right of the Association to levy assessments as provided in Article V below.
2. The right of the Association to charge reasonable admission and other fees for the use of any recreational facility situated upon the Common Properties.
3. The right of the Association to suspend the right to use of the recreational facilities and the right to draw water from the community water system of any Member for any period during which any assessment against said Member remains unpaid. Said suspension shall terminate immediately, however, upon the Member paying said assessment and costs of collection, if any.
4. The right of the Association to suspend the right to use the recreational facilities of any member for a period not to exceed thirty (30) days for any infraction of its published rules and regulations.
5. The right of the Association to fine any member up to and including $100.00 per day for each day or fraction thereof for any infraction of its published rules and regulations limiting or banning outside watering, and the right of the Association to suspend the right to draw water from the Community Water System to any member for any period during which any fine against said member remains unpaid after three (3) days written notice of the fine. Said suspension shall terminate immediately, however, upon the member paying said fine.
6. Any fine, together with such 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 fine is made. Each such fine, together and 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 fine fell due, his legal representatives heirs, successors and assigns.
Any fine not paid within thirty (30) days after the due date shall bear interest from the due date at the rate of twelve percent (12%) per annum. The Association may bring an action at law against the Owner personally obligated to pay the same, or foreclose the lien against the property in the manner provided by statute for the foreclosure of power of sale mortgages and there shall be added to the amount of such fine, the cost of processing such action, or foreclosing said lien, including reasonable attorney’s fees, and said interest.
The lien of the fine provided for herein shall be subordinate to the lien of any first mortgage. Sale or transfer of any lot shall not affect the fine lien. However, the sale or transfer of any lot pursuant to the foreclosure of a first mortgage shall extinguish the lien of such fine as to payments which became due prior to such sale or transfer. No sale or transfer shall relieve such lot from liability for any fines thereafter becoming due or from the lien thereof.
Section 1. Assessment Obligations. The Developer for each lot owned by him within The Properties hereby covenants and each Owner, his legal representatives, heirs, successors and assigns, of any Lot by acceptance of a deed therefore, whether or not it shall be so expressed in any such deed or other conveyance, shall be deemed to covenant and agree to pay to the Association: (1) initial assessments, (2) annual assessments or charges, (3) special assessments for capitol improvements, such assessments to be fixed, established and collected from time to time 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, his legal representative, heirs, successors and assigns.
Section 2. Purpose of Assessments. The assessments levied by the Association shall be used exclusively for the purpose of promoting the recreation, health, safety and welfare of the residents in The Properties, and in particular for the improvements and maintenance of services and facilities devoted to this purpose and related to the use and enjoyment of The Common Properties and of the homes situated upon The Properties, including, but not limited to, the payment of taxes (if any) and insurance thereon, and for the cost of labor, equipment, materials, management and supervision thereon, and for the cost of maintaining the community wells and water system for the residents.
Section 3. Initial Assessment. Each Class A member shall pay an initial assessment of Three Hundred Dollars ($300.00) per lot, said assessment to be due and payable at the time of the original transfer of said lot from 101 Realty, Inc., the Developer, to said member. In lieu of paying a cash initial assessment the Developer and Class B member, has installed a community water system consisting of two operations wells, two pump houses, an atmospheric storage tank, a pressure tank and piping and has an obligation to maintain said system and pay all expenses incidental to it through December 31, 1982. The cost of operating and maintaining said water system will be the responsibility of the Association commencing January 1, 1983.
Section 4. Maximum Annual Assessments. Annual assessments will commence with the year beginning January 1st, 1983.
a) For the year 1983, the maximum annual assessment shall be One Hundred Fifty Dollars ($150.00) per lot.
b) For years after 1983, the maximum annual assessment may be increased by the Board of Directors not more than ten percent (10%) above the maximum annual assessment for the previous year without a vote of the members.
c) For years after 1983, the maximum annual assessment may be increased more than ten percent (10%) above the maximum annual assessment for the previous year by a majority vote of each Class of members who are voting in person or by proxy at the annual meeting or at a meeting duly called for this purpose, written notice of which shall be sent to all members at least thirty (30) days in advance and shall set forth the purpose of the meeting.
d) The Board of Directors may fix the annual assessment at an amount not in excess of the maximum.
e) The annual assessment shall be due in one installment on the first day of the year unless changed by the Board of Directors who may change the due date and increase the number of installments.
Section 5. Special Assessments for Capital Improvements. In addition to the annual assessments authorized by Section 4 hereof, the Association may levy a special assessment for any purpose set forth in Section 2 above, provided that any such assessment shall have the assent of two-thirds (2/3) of the votes of each Class of Members who are voting in person or by proxy at a meeting duly called for this purpose, written notice of which shall be sent to all Members at least thirty (30) days in advance and shall set forth the purpose of the meeting.
Section 6. Quorum for any Action Authorized under Sections 4 and 5. Members present in person or by proxy entitled to cast fifty percent (50%) of all the votes of each Class of Membership shall constitute a quorum. If the required quorum is not forthcoming at any meeting, another meeting may be called, subject to the notice requirement of thirty (30) days and purpose of meeting, and the required quorum at any such subsequent meeting shall be one-half (1/2) of the required quorum at the preceeding meeting, provided that no such subsequent meeting shall be held more than sixty (60) days following the preceeding meeting.
Section 7. Duties of the Board of Directors. The Board of Directors of the Association shall, at least thirty (30) days in advance of the date of commencement, prepare a roster of The Properties and assessments applicable thereto, which shall be kept in the office of the Association and shall be open to inspection by any Owner who is a member. Written notice of the assessment shall thereupon be sent to every Owner subject thereto. The Association shall upon demand at any time, furnish to any Owner liable for said assessment, a certificate in writing signed by an officer of the Association, setting forth whether said assessment has been paid. Such certificate shall be conclusive evidence of payment of any assessment there in stated to have been paid.
Section 8. Effect of Nonpayment of Assessments: Remedies of the Association. Any assessment not paid within thirty (30) days after the due date shall bear interest from the due date at the rate of twelve percent (12%) per annum. The association may bring an action at law against the Owner personally obligated to pay the same, or foreclose the lien against the property in the manner provided by statute for the foreclosure of power of sales mortgages, and there shall be added to the amount of such assessment the cost of processing such action, or foreclosing said lien including reasonable attorney’s fees, and said interest.
Section 9. Subordination of the Lien to Mortgages. The lien of the assessments provided for herein shall be subordinate to the lien of any first mortgage. Sale or transfer of any lot shall not affect the assessment lien. However, the sale or transfer of any lot pursuant to the foreclosure of a first mortgage shall extinguish the lien of such assessments as to payments which became due prior to such sale or transfer. No sale or transfer shall relieve such lot from the liability for any assessments thereafter becoming due or from the lien thereof.
RESTRICTIONS ON THE PROPERTIES:
1. Only one single family dwelling together with incidental outbuildings shall be erected on each lot.
2. Lot size shall be a minimum of one (1) acre with a one hundred twenty-five (125) foot frontage.
3. Temporary structures, trailers, basements, tents, shacks, garages, barns or other buildings shall not be used on any Lot at any time as a residence, either temporarily or permanantly.
4. The construction of a dwelling shall be completed within one year from the date of commencement, and landscaping shall be completed within one year from the completion of dwelling.
5. No fences shall be erected or shrubbery planted so as to create blind or dangerous approaches to street.
6. No noxious or offensive activities shall be carried on upon any lot, nor shall anything be done thereon which may become an annoyance or nuisance to the neighborhood.
7. No animals, livestock or poultry of any kind shall be raised, or kept on any Lot except that dogs, cats or other household pets may be kept provided they are not kept or maintained for any commercial purpose and do not create a nuisance.
8. These restrictions shall run with, and bind the land, and shall inure to the benefit of and be enforceable by the Association, or the Owner of any land subject to this Declaration, their respective legal representatives, heirs, successors and assigns, for a term of ten (10) years from the date this Declaration is recorded, after which time said restrictions shall be extended for successive periods of ten (10) years unless an instrument signed by the then Owners of two-thirds (2/3) of the Lots has been recorded, agreeing to change said restrictions in whole or in part, and provided that written notice of the proposed change is sent to every Owner at least ninety (90) days in advance of any action taken.
9. Enforcement of these restrictions shall be by any proceedings at law or in equity against any person or persons violating or attempting to violate any covenant or restriction, either to restrain violation or to recover damages, and failure by the Association or any Owner to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter.
Section 1. 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, postage prepaid, to the last known address of the person who appears as Member or Owner on the records of the Association at the time of such mailing.
Section 2. Serverability. Invalidation of any one of these covenants by judgment or court order shall in no way affect any other provisions which shall remain in full force and effect.
Section 3. Prior Covenants. These Covenants shall supersede all prior covenants filed by the Developer with respect to the Properties.
Section 4. Amendments. Except as otherwise provided herein, the provisions of this Declaration of Covenants may be amended from time to time by an instrument in writing signed by the Owners holding three-quarters (3/4) of the voting power of each class of owners., which amendment shall be affective upon recordation at the Rockingham County Registry of Deeds.
IN WITNESS WHEREOF, 101 Realty, Inc., a New Hampshire corporation, has caused these presents to be signed in its corporate name and its corporate seal affixed by its duly authorized officer on the day and year first above written.
WITNESS: 101 Realty, Inc.
_X_Donald J Caron_______ BY _X_Mathew J Zsofka______________
Matthew J. Zsofka, President
STATE OF NEW HAMPSHIRE
COUNTY OF HILLSBOROUGH
The foregoing instrument was acknowledged before me this 23rd day of July, 1981 by Matthew J. Zsofka, President of 101 Realty, Inc., a New Hampshire corporation, on behalf of the corporation.
_X__Donald J Caron______________