ESTABLISHING A PLAN OF CONDOMINIUM OWNERSHIP
OF PREMISES LOCATED AT THE
PURSUANT TO ARTICLE 9‑B OF THE REAL PROPERTY
LAW OF THE STATE OF
DATE OF DECLARATION:
CERTILMAN BALIN ADLER & HYMAN, LLP.
The Financial Center at Mitchel Field
Attorneys for the Sponsor
TABLE OF CONTENTS
ARTICLE FIRST: Submission of Property ........................................... 1
ARTICLE SECOND: Description of Property ............................................ 1
ARTICLE THIRD: Definitions ................................................................. 1
ARTICLE FOURTH: Community ................................................................ 2
ARTICLE FIFTH: Common Elements .................................................. 3
ARTICLE SIXTH: Easements ................................................................ 4
ARTICLE SEVENTH: Service of Process ................................................... 4
ARTICLE EIGHTH: Common Interest ...................................................... 4
ARTICLE NINTH: Administration ........................................................... 5
ARTICLE TENTH: Amendment and Withdrawal.................................... 5
ARTICLE ELEVENTH: Subject to Declaration, By‑Laws, etc...................... 6
ARTICLE TWELFTH: Common Charges..................................................... 6
ARTICLE THIRTEENTH: Homes Acquired by the Board................................ 7
ARTICLE FOURTEENTH: Encroachments......................................................... 7
ARTICLE FIFTEENTH: Home Ownership...................................................... 7
ARTICLE SIXTEENTH: Conveyance of a Home........................................... 7
ARTICLE SEVENTEENTH: Covenants and Restrictions..................................... 8
ARTICLE EIGHTEENTH: Invalidity..................................................................... 9
PLAN OF CONDOMINIUM HOME OWNERSHIP
PURSUANT TO ARTICLE 9‑B OF THE REAL
PROPERTY LAW OF THE STATE
In the Incorporated
and State of
for the Lot Owners described on Exhibit A, whose principal office is situated
FIRST: Submission of Property By this Declaration the Declarant submits the property described in this Declaration, including the land and the Buildings and all other improvements erected and to be erected thereon, all easements, rights and appurtenances belonging thereto and all other property, real, personal or mixed, intended for use in connection therewith, to the provisions of Article 9‑B of the Real Property Law of the State of New York.
SECOND: Description of Property. The Declarant is the attorney‑in‑fact of the Owners of all that certain plot, piece or parcel of land, with the buildings and improvements thereon erected, situate, lying and being in the Incorporated Village of Port Jefferson, Town of Brookhaven, Suffolk County, State of New York, and more particularly bounded and described on Schedule A annexed hereto and made a part hereto.
(a) The Owner of each Home is hereinafter referred to as the "Home Owner." Every Home Owner shall be treated for all purposes as a single owner, irrespective of whether such ownership is joint, in common or tenancy by the entirety. Where such ownership is joint, in common or tenancy by the entirety, majority vote of such owners shall be necessary to cast the Home Owners vote referred to in Article EIGHTH of this Declaration.
(b) A "Home" as hereinafter referred to shall be defined as follows: Each Home is measured horizontally from the exterior surface of the sheetrock of all opposite walls to the exterior surface of the sheetrock of all opposite walls and vertically from the lower surface of the concrete slab or sub‑floor forming the floor of the Home up to the exterior
surface of the sheetrock or other material forming the ceiling of the Home. Doors, windows, interior walls, fire places and garages which abut a Home are part of the Home. The Description of Homes set forth herein pertains to the location of the walls, floors and roof of the Homes as they are finally set forth in the building plans to be filed simultaneously with the recording of this Declaration.
(c) "Declarant" shall mean and refer to Ira J. Adler and Howard M. Stein, as attorneys‑in‑fact for the Home Owners referred to on Exhibit A.
(d) A "Building" as hereinafter referred to shall be defined as a number of Homes all of which are constructed under a continuous roof.
(e) "Party Wall" as hereinafter referred to shall be defined as a wall which is common to and separates two Homes.
(f) "Condominium" as hereinafter referred to shall mean the Riviera Condominium which is composed of the Home Owners.
(g) The term
"Home", "Lot Owner" and "Home Owner" as used
herein shall be construed to mean Unit and Unit Owner as defined in Section
339‑e of Article 9‑B of the Real Property Law of the State of
(h) "Association" as hereinafter used shall mean Riviera Home Owners Association, Inc., a not‑for‑profit corporation organized to perform certain maintenance, operational, and repair services for the benefit of Home Owners in the Condominium and certain adjacent parcels comprising the Riviera Development.
FOURTH: Community. The Home Owners of the 87 Homes and Lots, set forth on Exhibit A, are desirous of submitting their property to Article 9B of the Real property Law and create a Condominium Community for the Riviera Condominium, according to the plans filed simultaneously with the recording of this Declaration in the Office of the Clerk of Suffolk County, which Plans set forth a description of the buildings stating the number of stories and number of Homes.
The Community will consist of 87 Homes to be located in ( ) buildings as set forth on the Plot Plan filed simultaneously herewith. The Homes are constructed of concrete foundations, wood studs and asphalt shingle roof. Each of the Homes has access to a public street by means of a walk, driveway or roadway. For the purposes of describing the location of the buildings, approximate area, type and number of rooms of each Home and the common elements to which each Home has immediate access, each Home is described on Exhibit B, annexed hereto. Each Home will be sold to one or more Owners, each Owner obtaining fee ownership in, and exclusive right of occupancy and possession of the Home, together with an undivided interest in the common elements of the Community, as listed hereinafter in this Declaration, and referred to as the "common
elements", all of the above in accordance with Article 9‑B of the Real Property Law of the State of New York. The designation of the number of rooms, interior partitions and kitchen and bathroom facilities may be changed by mutual consent of the Owner and the Home Owner at the time of construction of the Home.
FIFTH: Common Elements. The common elements of the Community will consist of all of the Community, except the Homes, including, but without limitation, outside walls and roofs of the Buildings, the land, buildings and improvements (other than the Homes) comprising the Community (including the land under the Homes and under the improvements), all utility or other pipes and material located outside of the Homes.
IRREVOCABLY RESTRICTED AREAS
Certain portions of the common elements are irrevocably restricted in use to specified Home Owners, subject to the right of the Board of Managers to enter upon any restricted area for maintenance, repair or improvement of a Home or common element and subject to the rules of the Board of Managers (see By‑Laws, Article Vill). Any portion of the common elements which is not restricted in use may be used by any Home Owner. The common elements are not subject to partition nor are they severable from the Homes except in accordance with the Real Property Law. Following are detailed descriptions of the irrevocably restricted common elements:
1. Any balcony, deck, or patio area that is located adjacent to each Home is restricted in use to the owner of such Home.
2. Any heating and/or cooling unit, if located in the common elements adjacent to each Home and serving such Home, is restricted in use to the Owner of such Home and shall be maintained and repaired by such Owner at their sole cost and expense.
3. The land comprising the
4. The driveway located in front of the garage forming part of each Home is restricted in use to such Home.
The common elements shall remain undivided and no Home Owner shall bring any action for partition or division unless otherwise provided by law.
The percentage of the undivided interest in the common elements established herein shall not be changed except with the consent of all of the Home Owners affected expressed in a duly recorded amendment to this Declaration.
The undivided interest in the common elements shall not be separated from the Home to which it appertains and shall be deemed conveyed or encumbered with the Home even though such interest is not expressly mentioned or described in the conveyance or other instrument.
SIXTH: Easements. All pipes, wires, conduits and public utility lines located within each Home shall be owned by such Home Owner. Any portion of such pipes, wires, conduits and public utility lines located in the common elements including electric meter banks located on the exterior of a home and servicing one or more other homes, will be owned in common by the Home Owners. Every Home Owner shall have an easement in common with the owners of other Homes to maintain and use all pipes, wires, conduits and public utility lines located in other Homes and servicing such Home Owner's Home. Each Home shall be subject to an easement in favor of the Home Owners of other Homes to maintain and use the pipes, wires, conduits and public utility lines servicing such other Homes and located in such Home. The Board of Managers shall have a right of access to each Home for maintenance, repair or improvements to any pipes, wires, conduits and public utility lines located in any Home and servicing any other Home. The cost of such repairs shall be a common expense. The Board of Managers shall have a right of access to all common elements for maintenance, repair or improvement whether such common elements are restricted or not.
The Board of Managers of the Riviera Condominium and the Board of Directors of the Riviera Home Owners Association, Inc., (the "Association") or any of their agents, employees or contractors shall have a right of access through, under, over and across the common elements for the purpose of performing any of their obligations as provided for in this Declaration and annexed By‑Laws or in a certain Declaration of Covenants, Restrictions, Easements Charges and Liens, and By‑Laws of the Association filed in the Suffolk County Clerk's Office as the same may be amended in the future.
All emergency vehicles and personnel, including, but not limited to, police, fire and medical purposes shall be granted an easement of ingress and egress over, upon and through the internal roadways in the Riviera Condominium for ingress and egress to a public road, if necessary. This Paragraph may not be amended by the Home Owner's in the Condominium.
SEVENTH: Service of Process: Service of process on the
Home Owners in any action with relation to the common elements shall be made upon
the Secretary of State as the agent of the Board of Managers of the Riviera
Condominium. The post office address to which the Secretary of State shall
mail a copy of any process against this Condominium served upon him as agent
of this Condominium during the period the Declarant
controls the Board of Managers is:
EIGHTH: Common Interest. Each Home Owner shall have such percentage interest in the common elements as is set forth in Exhibit B attached hereto and shall bear
such percentage of the common expenses of the Condominium. Each Home Owner shall have one vote for all voting purposes at any meeting of the Home Owners. The percentage of interest of each Home in the common elements has been based on equal percentages one for each Home, as of the date of recording this Declaration.
NINTH: Administration. The administration of the Condominium, the Community and parcel of land described herein shall be in accordance with the provisions of this Declaration and with the provisions of the By‑Laws which are made a part of this Declaration and are attached hereto as Exhibit C.
TENTH: Amendments and Withdrawal.
(a) The dedication of the property to Condominium ownership herein shall not be revoked or the property withdrawn from Condominium ownership unless 80% of the Home Owners in number and in common interest and the first mortgagees, if any, of each of these same homes agree to such revocation or removal of the property from the Plan by duly recorded instruments.
(b) The provisions of this Declaration may be modified or amended by an instrument executed by the Board of Managers upon a vote of sixty‑six and twothirds percent (66 2/3%) of the Home Owners in number held at a duly‑called meeting of the Home Owners, provided however, that:
(i) No amendment shall change any condominium parcel, nor a home owners proportionate share of the common charges, nor the voting rights appurtenant to any home, unless all of record owner(s) in number and common interest thereof and the first mortgagees, if any, of each of these same homes agree to such revocation by recorded instrument.
(ii) No amendment shall be passed which shall impair or prejudice the rights and priorities of mortgagees.
There shall be a presumption for a period of 60 days subsequent to the recording of the amendment that the vote of the home owners was made at a duly called meeting and that the requisite voting percentage was obtained. After the 60 day period such presumption will be deemed conclusive.
(c) Any amendment to this Declaration shall not take effect until it is recorded in the Office of the Clerk of Suffolk County.
Irrespective of any other provision of this Declaration, no action for partition or division of the common elements shall be brought nor shall this plan of condominium
ownership be terminated where such partition, division or termination will result in a violation of the then existing local zoning and building laws and codes.
ELEVENTH: Subject to Declaration, By‑Laws, etc All present or future Home Owners, tenants, future tenants, or any other person that might use the facilities of the Condominium in any manner, are subject to the provisions of this Declaration, the By‑Laws and Rules and Regulations of the Condominium and the mere acquisition or rental of any of the Homes of the Condominium or the mere act of occupancy of any of said Homes shall signify that the provisions of this Declaration and the By‑Laws and Rules and Regulations of the Condominium are accepted and ratified and all of such provisions shall be deemed and taken to be covenants running with the land and shall bind any person having at any time any interest or estate in such Home, as though such provisions were recited and stipulated at length in each and every deed, conveyance or lease thereof.
TWELFTH: Common Charges All sums
assessed as common charges by the Board of Managers of the Condominium but
unpaid together with the maximum interest permitted in New York thereon, chargeable
to any Home Owner shall constitute a lien on his Home prior to all other
liens except: (a) tax or assessment liens on the Home by the taxing
subdivisions of any governmental authority, including but not limited to
State, County and School District taxing agencies; and (b) all sums unpaid on
any first mortgage of record encumbering any Home. Such lien may be
foreclosed when past due in accordance with the laws of the State of
Every Home Owner shall pay the common charges assessed against him when due and no Home Owner may exempt himself from liability for the payment of the common charges assessed against him by waiver of the use or enjoyment of any of the common elements or by the abandonment of his Home. However, no Home Owner shall be liable
for the payment of any common charges accruing subsequent to a sale, transfer or other conveyance by him of such Home made in accordance with Section 339‑x of the Real Property Law or in accordance with the provisions of this Declaration and the By‑Laws.
THIRTEENTH: Homes Acquired by the Board. In the event any Home Owner shall convey his Home to the Board of Managers in accordance with Section 339‑x of the Real Property Law or in the event the Board of Managers shall purchase any Home at a foreclosure sale in accordance with Article IX of the By‑Laws, title to such Home or the rights to the lease of such Home shall be held by the Board of Managers or its designee on behalf of all of the other Home Owners.
In order to carry out the provisions of this Paragraph each Home Owner shall, upon becoming such, grant an irrevocable power of attorney, coupled with an interest to the Board of Managers and their successors to acquire title or lease any such Home under whatever terms the Board may in its sole discretion deem proper and to sell, lease, sublease, mortgage, vote or otherwise deal with such Home under such terms as the Board in its sole discretion shall deem proper.
FOURTEENTH: Encroachments. The Home Owners agree that if any portion of a Home or the common elements (whether restricted in use to an individual Home Owner or not) encroaches upon another or shall hereinafter encroach upon another as a result of original construction or settling of the Buildings, a valid easement for the encroachment and the maintenance of the same, so long as it stands, shall and does exist. In the event the Buildings are partially or totally destroyed as a result of fire or other casualty or as a result of condemnation or eminent domain proceedings and is rebuilt, the Home Owners agree that encroachments of any portion of the Home or the common elements as aforedescribed due to construction, shall be permitted, and that a valid easement for said encroachment and the maintenance thereof shall exist so long as the Buildings or reconstructed Buildings shall stand.
FIFTEENTH: Home Ownership Upon the closing of title to a Home, a purchaser shall automatically become a Home Owner in the Condominium and shall remain such until such time as he ceases to own the Home for any reason.
SIXTEENTH: Conveyance of a Home. In any conveyance of a Home, either by voluntary instrument, operation of law or judicial proceeding in accordance with this Declaration or the By‑Laws, the Grantee of the Home shall be jointly and severally liable with the Grantor for any unpaid common charges against the latter assessed and due up to the time of the grant or conveyance without prejudice to the Grantee's right to recover from the Grantor the amounts paid by the Grantee therefor. Any such Grantee shall be entitled to a statement from the Board of Managers setting forth the amount of the unpaid common charge against the Grantor and such Grantee shall not be liable for, nor shall the Home conveyed be subject to a lien for any unpaid common charge against the Grantor in excess of the amount set forth in such statement. Grantee as. used herein shall not
include either the holder of an institutional mortgage of record or other purchaser of a Home at a foreclosure sale of an institutional mortgage.
SEVENTEENTH: Covenants and Restrictions. The use of the Home by the Home Owner or other occupant shall be subject to the rules, regulations and provisions of this Declaration, the By‑Laws and Rules and Regulations of the Board of Managers and the following covenants and restrictions:
(a) The Home and area restricted to the Home Owner's use shall be maintained in good repair and overall appearance.
(b) No alterations to any part of the common elements may be made and no structure may be built on any portion of the common elements or restricted common elements without the written consent of the Board of Managers. No alterations to the inside of a Home which would impair the structural soundness of the Buildings may be made without the written consent of the Board of Managers. Consent may be requested by mailing a letter, certified mail, return receipt requested to the Management Agent, if any, or to the President of the Board of Managers, if no Management Agent is employed. The Board of Managers shall have the obligation to answer within sixty days and failure to do so within the stipulated time shall mean that there is no objection to the proposed modification or alteration. All work done pursuant to this Section must be done in accordance with all applicable rules, regulations, permits and zoning ordinances of any governmental agencies having jurisdiction thereof. All necessary approvals must be obtained and submitted to the Board of Managers upon submission of the written request for consent to do the work to the Board of Managers. The provisions of this paragraph shall not apply to Owner.
(c) Any interior alterations or improvements made to a Home shall be made in accordance with all applicable rules, regulations, permits and zoning ordinances of any governmental agencies having jurisdiction thereof.
(d) No building, deck, patio fence, sign, statuary, wall or other structure, or change or alteration to the exterior of the Homes or color of the Homes or in the landscaping shall be commenced, erected, replaced, repaired or maintained, nor shall any exterior addition to, or change or alteration thereto, be made unless the Home Owner complies with requirements of the Architectural Control provisions contained in Article XIV, Section 3 of the By‑Laws of the Riviera Home Owners Association, Inc.
(e) Any Home Owner who mortgages his Home shall notify the Board of Managers providing the name and address of his mortgagee.
(f) The Board of Managers shall, at the request of the mortgagee of the Home, report any unpaid common charges due from the Home Owner of such Home.
(g) No nuisances shall be allowed upon the property nor shall any use or practice be allowed which is a source of annoyance to residents or which interferes with the peaceful possession and proper use of the property by its residents.
(h) No immoral, improper, offensive or unlawful use shall be made of the property nor any part thereof and all valid laws, zoning ordinances and regulations of all governmental bodies having jurisdiction thereof shall be observed.
(i) Regulations promulgated by the Board of Managers concerning the use of the property shall be observed by the Home Owners, provided, however, that copies of such regulations are furnished to each Home Owner prior to the time the said regulations become effective.
6) The common charges shall be paid when due.
EIGHTEENTH: Invalidity. Invalidation of any of the covenants, limitations or provisions of the Declaration by judgment or court order shall in no wise affect any of the remaining part or parts hereof, and the same shall continue in full force and effect.
IRA J. ADLER, Attorney‑in Fact For The Home Owners Set Forth On Exhibit A.
HOWARD M. STEIN, Attorney‑in Fact For The Home Owners Set Forth On Exhibit A.
On the day of in the year 2000, before me, the undersigned, personally appeared IRA J. ADLER, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.
On the day of in the year 2000, before me, the undersigned, personally appeared HOWARD M. STEIN, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.