Charter Oaks Condominium Declaration

Charter Oaks Condominiums is made up of 220 units. There are 21 two-story residential buildings with basements. There are three garage buildings containing 48 garages. There are 48 Townhouse Units, and 172 Garden Units.

There are Charter Oaks Garden Units on Charter Oaks Drive, Greenwich Drive, and on Groton Drive. See Schedule C of the Declaration for more detailed information. Townhouses are located on both Groton Drive and Skinnersville Road.

The Charter Oaks Declaration appears on pages 101-124 of the Charter Oaks Blue Book. The Declaration, along with the By-Laws, define how the Charter Oaks Condominium is to be organized and run.

The By-Laws and Declaration can only be changed by a majority vote of the unit owners. This procedure is outlined in both the Declaration and in the By-Laws.

Note: this section applies only to the Charter Oaks Condominiums, i.e. the “buildings”. For information about the Association (“grounds”), please go to the Association Declaration and the Association By-Laws.

For the Premises Described on Schedule A attached hereto in Amherst, New York, pursuant to Article 9-B of the Real Property Law of the State of New York.

Charter Oaks Apartments, a New York partnership composed of Caldwell Development Corp. and W.N.Y. Property Mgmt., Inc. having an office at 5820 Main Street, Williamsville, New York, hereinafter referred to as the “Sponsor”, does hereby declare:

I. Submission of Property.The Sponsor hereby submits the land described on Schedule A attached hereto and made a part hereof, together with all improvements thereon erected (hereinafter called the “Property”) to the provisions of Article 9-B of the Real Property Law of the State of New York.

II. Name of Condominium. This Condominium shall be known as the “Charter Oaks Condominium” sometimes hereinafter referred to as the “Condominium”. The Condominium shall be comprised of the Owners of the”Units” (see below) on the Property.

III. Buildings and Units.

A. Buildings. The “Buildings” as hereinafter referred to are:

1. the residential structures known as and by the following street numbers:
Skinnersville Road – Nos. 611, 631, 641
Charter Oaks Drive – Nos. 30-40-50, 65-75, 60-70-80, 90-100-110-120,135-145-155, 165-175-185-195, 205-215-225
Groton Drive – Nos. 35, 40-50, 55, 60-70, 75, 80-90, 100-110, 120-130
Greenwich Drive – Nos. 5-15-25, 35-45-55-65, 75-85-95-105

2. the three structures containing garages

3. one gatehouse enclosure building located at the Charter Oaks Drive entrance to the Property from Skinnersville Road.

B. Number and Location of Units. There are 48 Townhouse Units, 172 Garden Apartment Units (hereinafter sometimes together referred to as the “Residential Units”) and 47 Garage Units. The Townhouse Units are designated by address and letter, and the Garden Apartment Units by address and number. The Garage Units are identified-by number and may sometimes be designated with a prefix “G” before the Garage Unit number. Schedule B attached hereto, and made a part hereof contains a description of the Buildings including the number of stories, basement and cellars, and the materials of which each building is constructed.

C. Designations and Plans of Units. Annexed hereto, and made part hereof as Schedules C-1 and C-2 (C-1 covering Residential Units and C-2 covering Garage Units) is a list of all units (the “Units”) in the Buildings, their Unit designations, tax lot numbers, locations, approximate areas, number of rooms and percentage of interest in the “common elements,” as hereinafter defined, (all as shown on the floor plans of the Buildings, certified by Joseph Glajch, 182 Siegfried Street, Williamsville, New York, 14221, licensed professional engineer, and filed in the Office of the Erie County Clerk simultaneously with this Declaration).

D. Dimensions of Units. Each Townhouse Unit consists of the area measured horizontally from the exterior surface of the sheetrock of all opposite walls to the exterior surface of the sheetrock of all opposite walls (except that in the basement each Townhouse Unit is measured horizontally from the interior surface of the foundation of all opposite walls to the interior surface of the foundation of all opposite walls) and vertically from the lower surface of the concrete forming the basement floor of the Unit up to the exterior surface of the sheetrock forming the ceiling of the Unit. Each Garden Apartment Unit 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 subfloor forming the floor of the Unit up to the exterior surface of the sheetrock forming the ceiling of the Unit. Doors, windows and interior walls which abut a Unit are part of the Unit. The furnace, hot water tank and air conditioning unit servicing a Garden Apartment Unit and all pipes, ducts, wires and conduits connecting such equipment to the Unit are part of the Unit.

Each Garage Unit is measured horizontally from the interior surface of the outside rear sidewall to the plane formed by the extension of the interior facing of the innermost stud adjoining wood pilasters or wood mullions which separate garage doors and the interior header of the top surface of the wood facia above the garage door, and from side to side from the center line of the plane formed by the extension of the center lines of the vertical studs between garages to the plane formed by the extension of the center lines of the vertical studs between garages except that those sides of garages which form the exterior of a Building shall be measured to the interior facing of the stud and brick veneer sidewall. The garage door, including all mechanical parts and hardware, shall be part of the Garage Unit. Each Garage Unit shall be measured vertically from the lower surface of the concrete forming the floor of the garage up to the interior surface of the plywood sheeting and stud rafters forming the roof of the garage.

E. Sale of Units. Each Unit will be sold to one or more parties (hereinafter referred to as the “Unit Owners”) with each Unit Owner obtaining fee ownership to the Unit acquired and the appurtenant undivided interest in the “common elements” (see below) of the Condominium, as set forth in Schedule C-i and C-2 of this Declaration.

Each Garage Unit must be owned by the Owner of a Residential Unit and, with the exception of those instances where two Garage Units were purchased with one Residential Unit from the Sponsor, and the successors in interest to such purchaser, no Residential Unit Owner may also own more than one Garage Unit. Any conveyance of a Garage Unit to other than a Residential Unit Owner and, except as specified above, any conveyance of a Garage Unit to a Residential Unit Owner already owning one Garage Unit, shall be deemed absolutely null and void and of no effect.

F. Use of Units. Each Residential Unit shall:

(1) be used for residence purposes only;

(2) be occupied by not more persons (including children) than two times the number of bedrooms in the Unit; and

(3) if such Unit is occupied by three or more persons (including children), such persons shall be members of the same family (or if the Unit Owner or lessee is a partnership, a corporation or a trust, members of the family of a partner, or director, or shareholder, or employee of the corporation or of the beneficiary of the trust, as the case may be). “Same family” shall be defined as persons related to one another as husband, wife, mother, father, sister, brother, stepsister, stepbrother, daughter, son, stepdaughter, stepson; together with their children. This restriction requiring three or more occupants to be members of the same family may be waived by written consent obtained from the Board of Managers prior to occupancy.

Each Garage Unit shall be used for the parking of automobiles and other motor vehicles, and for the storage of personal property and household items. Notwithstanding the above, so long as the Sponsor owns one or more Units, it may use Units for sales offices, models and the storage of supplies and equipment.

IV. Common Elements.

A. Definition of Common Elements. The common elements consist of all of the Property, except the Units, including but without limitation; outside walls and roofs of Buildings containing Units, foundations of Buildings containing Residential Units, the land, all buildings (other than the Units) and improvements on the Property including the land under the Units and under the improvements), the community television antenna and system, all utility or other pipes and material located outside of the Units and not owned by public utility companies, the parking areas for cars, driveways, roadways grass areas, sidewalks, patios, balconies, and the halls, basements (including storage areas), stairs and stairwells in the Buildings containing the Garden Apartment Units.

B. Interest in Common Elements. Each Unit Owner shall have such percentage interest in the common elements as is set forth on Schedules C-1 and C-2 attached hereto and shall bear such percentage of the common expenses of the Condominium. The percentage of interest of each Unit in the common elements has been determined by the Sponsor on the basis of each of the separate classifications of Units having an equal percentage interest in the common elements as follows:

Each Garden Apartment Unit having floor space of 730 sq. feet has a .3637 per cent interest in the common elements of the Condominium.

Each Garden Apartment Unit having floor space of 934 sq. feet has a .4606 per cent interest in the common elements of the Condominium.

Each Townhouse Apartment Unit having floor space of 1,152 sq. feet has a .5364 per cent interest in the common elements of the Condominium.

Each Townhouse Apartment Unit having floor space of 1,375 sq. feet has a .6404 per cent interest in the common elements of the Condominium.

Each Garage Unit has a .0156 per cent interest in the common elements of the Condominium.

The undivided interest in the common elements shall not be separated from the Unit to which it appertains and shall be deemed conveyed or encumbered with the Unit even though such interest is not expressly mentioned or described in the conveyance or other instrument.

C. Common Elements to Remain Undivided. The common elements shall remain undivided and no Unit Owner shall bring any action for partition or division unless otherwise provided by law.

D. Restricted Common Elements. Certain portions of the common elements are irrevocably restricted in use to the specified Unit Owners, subject to the right of the Board of Managers to enter upon any restricted area for maintenance repair or improvement of a Unit or common element and subject to the rules of the Board of Managers (see Article VII of By-Laws attached hereto as Schedule D). Any portion of the common elements which is not restricted in use may be used by any Unit Owner. Following are detailed descriptions of the irrevocably restricted common elements:

1. The land which is located directly beneath each Unit (except second floor Garden Apartment Units) is restricted in use to the Owners of such Unit.

2. The rectangular patio or portion thereof abutting each Townhouse Unit and first floor of some Garden Apartment Units and any rectangular balcony abutting a second story Garden Apartment Unit are restricted in use to the Owners of the Townhouse Unit(s) or Garden Apartment Unit(s) abutting the patio or balcony or portion thereof.

3. The halls, basement, stairs and stairwells in the buildings containing Garden Apartment Units, (except storage rooms or enclosed storage areas, constructed in the basement with the permission of the Board of Managers, which rooms or areas shall be deemed restricted in use to the Owners of the Unit for which such room or area was originally constructed) are restricted in use to the Owners of Units within each such building.

Right of Board of Managers to Permit Construction of Storage Rooms or Enclosed Storage Areas in Basement. The Board of Managers, in its sole discretion, shall have the right, but shall not be required, to permit the Owners of a Garden Apartment Unit to construct or to have constructed by or at the direction of the Board of Managers, storage rooms or enclosed storage areas in that half of the Building over which such Owner’s Unit is located. All such construction shall be subject to such rules, regulations and restrictions as the Board of Managers may promulgate from time to time including controls as to the size, location, construction materials and appearance of such storage room or enclosed storage area. No such construction shall violate the requirements of any governmental building code or other ordinance and the entire responsibility for compliance with governmental codes and ordinances with respect to the construction and use of any such storage room or enclosed storage area shall solely be that of the Owner of the Unit for which such room or area is constructed or restricted in use and the Board of Managers shall be held harmless by such Unit Owner for any such violation. No construction, expansion or alteration of any such storage room or enclosed storage area shall be made without the written permission of the Board of Managers. Permission may he requested through the Manager, the Management Agent, if any, or through the President of the Board of Managers, if no Manager or Management Agent is employed. If no response is received from the Board of Managers concerning the request for such permission within forty (40) days after such request is received by the Board, Manager, Managing Agent or President, the Unit Owner seeking such request may make a second request and if no response is received within thirty (30) days thereafter, the permission will be deemed granted. Any permission granted or deemed granted for the construction of any such storage room or enclosed storage area shall be subject to the following:

that construction be completed within 180 days after such permission is granted or deemed granted,

that no such construction be of such size and dimensions as to preclude other Owners of Units in the Building which are located over such half of the basement from constructing a storage room or enclosed storage area of similar size and dimensions,

that such storage room or enclosed storage areas shall be constructed and maintained at the sole cost and expense of the Owner of the Unit to which use of such storage room or enclosed storage area is to be restricted,

that once constructed, such storage room or enclosed storage area shall be deemed to be a Restricted Common Element, restricted in use to the Owner of the Unit for which such storage room or enclosed storage area was initially constructed and as such, the right to use such shall be transferred with such Unit.

V. Easements.

A. Utilities, Pipes and Conduits. Each Unit Owner shall have an easement in common with the owners of all other Units to use, in accordance with present use and present available facilities, all pipes, wires, ducts, cables, conduits, public utility lines, and other common elements located in any of the other Units and serving the Unit or Units of such Unit Owner. Each Unit shall be subject to an easement in favor of the Owners of all other Units to use in accordance with present use and present available facilities the pipes, ducts, cables, wires, conduits, public utility lines and other common elements serving such other Units and located in such Unit.

B. Access of Board of Managers. The Board of Managers shall have a right of access to each Unit to inspect the same, to remove violations therefrom and for maintenance, repair or improvements to any pipes, wires, ducts, cables, conduits and public utility lines located in any Unit and servicing any other Unit. The cost of such repairs shall be a common expense. The Board of Managers shall have aright of access to all common elements to remove violations and for inspection, maintenance, repair or improvement.

C. Sponsor’s Easement for Marketing Purposes. The Sponsor reserves the right with respect to its marketing of Units, to use the common elements for the ingress and egress of itself and for prospective purchasers and contract purchasers of Units, including the right of such prospective purchasers and contract purchasers to park in parking spaces. Any damages to the common elements resulting from this easement shall be repaired by the Sponsor within a reasonable time after the completion of its sale of the Units or termination of such use of the common elements, whichever shall first occur. The Sponsor agrees to hold the Condominium harmless from all liabilities resulting from the use of the common elements in conjunction with the marketing of Units. This section shall not be amended without the consent of the Sponsor.

VI. Service of Process. Service of process on the Unit Owners in any action with relation to the common elements shall be made upon: Board of Managers of the Charter Oaks Condominium, Skinnersville Road, Amherst, New York.

VII. Voting Rights. For all voting purposes except for amendment to this Declaration as provided below, at any meeting of the Unit Owners, the Owners of Residential Units shall have one (1) vote for each Residential Unit owned. The Owners of Garage Units shall not have any vote for each Garage Unit owned.

VIII. Administration. The administration of the Condominium, the Buildings and parcel of land (the Property) described herein shall be in accordance with the provisions of this Declaration and with the provisions of the Condominium By-Laws which are made a part of this Declaration and are attached hereto as Schedule D.

IX. Amendment. This Declaration may be modified, altered, amended or added to at any duly called meeting of Unit Owners provided that:

A. A notice of the meeting containing a full statement of the proposed modification, alteration, amendment or addition has been sent to all Unit Owners as listed on the books and records of the Condominium and to all mortgagees of Units who have requested same; and

B. 66-2/3% or more in number and in common interest of all Unit Owners of Residential Units approve the change; and

C. The Board of Managers does not, prior to the date established for voting on the proposed change, receive written notification of opposition to the change from mortgagees of more than 50% of the number of Residential Units; and

D. An instrument evidencing the change is duly recorded in the office of the Erie County Clerk. Such instrument need not contain the written consent of the required number of Unit Owners, but shall contain a certification by the Board of Managers of the Condominium that the consents required by this Section for such change have been received and filed with the Board of Managers.

X. Declaration, By-Laws and Rules and Regulations are Binding on Owners, Tenants and Occupants of Units. All present or future Unit Owners, tenants, occupants or any other person that might use the facilities of the Property in any manner, are subject to the provisions of the Declaration, the By-Laws and Rules and Regulations of the Condominium as they may be amended from time to time. The acceptance of a deed or conveyance or the entering into of a lease, or the entering into of occupancy of any Unit shall signify that the provisions of this Declaration and the By-Laws and Rules and Regulations of the Condominium are accepted and ratified by such Owner, tenant or occupant, 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 Unit, as though such provisions were recited and stipulated at length in each and every deed or conveyance or lease thereof.

XI. Common Charges. All sums assessed as common charges by the Board of Managers of the Condominium, but unpaid, together with interest thereon at such rate as may be fixed by the Board of Managers from time to time, such rate not to exceed the maximum rate of interest then permitted by law, shall be the personal obligation of the Unit Owner and shall constitute a lien upon the Unit prior to all other liens except: (a) tax or assessment liens on the Unit by the taxing subdivision of any governmental authority, including but not limited to State, County, Town and School District taxing agencies and (b) all sums unpaid on any first mortgage of record encumbering any Unit. Such lien may be foreclosed when past due in accordance with the laws of the State of New York, by the Condominium, in like manner as a mortgage on real property, and the Condominium shall also have the right to recover all costs incurred including reasonable attorney’s fees (but such right shall not be a lien against the Unit). In the event the proceeds of the foreclosure sale are not sufficient to pay such unpaid common charges, the unpaid balance shall be charged to all Unit Owners as a common expense. However, where the holder of an institutional mortgage of record, or other purchaser of a Unit at a foreclosure sale of an institutional mortgage, obtains title to the Unit as a result of foreclosure or the institutional mortgage holder obtains title by conveyance in lieu of foreclosure, such acquirer of title, his successors or assigns, shall not be liable and the Unit shall not be subject to a lien for the payment of common charges chargeable to such Unit which were assessed and became due prior to the acquisition of title to such Unit by such acquirer. In such event, the unpaid balance of common charges shall be charged to all other Unit Owners as a common expense. The term “institutional mortgage” herein used shall mean a first mortgage granted by a bank, federal savings and loan association, life insurance company, pension fund, trust company or other institutional lender or a mortgage granted by the Owner to a purchaser of a Unit.

Every Unit Owner shall pay the common charges assessed against him when due and no Unit 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 Unit. However, no Unit Owner shall be liable for the payment of any common charges accruing subsequent to a sale, transfer, or other conveyance by him of such Unit 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.

XII. Power of attorney to Board of Managers. Each Unit Owner shall grant to the persons who shall from time to time constitute the Board of Managers, an irrevocable power of attorney, coupled with an interest, to acquire title to or lease any Unit whose owner desires to surrender, sell or lease the same, or which may be the subject of a foreclosure or other judicial sale in the name of the Board of Managers or its designee, corporate or otherwise, on behalf of all Unit Owners, and to convey, sell, lease, mortgage, vote the votes appurtenant thereto or otherwise deal with any such Unit so acquired or to sublease any Unit so leased by the Board of Managers.

XIII. Acquisition of Units by Board of Managers. In the event any Unit Owner shall surrender such Unit Owner’s Unit, together with: (i) the undivided interest in the common elements appurtenant thereto; (ii) the interest of such Unit Owner in any other Units acquired by the Board of Managers or its designee on behalf of all Unit Owners or the proceeds of the sale, or lease thereof, if any; and (iii) the interest of such Unit Owner in any other assets of the Condominium (hereafter collectively called the “Appurtenant Interests”) pursuant to the provisions of Section 339-x of the Real Property Law of the State of New York, or in the event the Board of Managers shall purchase at a foreclosure or other judicial sale, a Unit together with the Appurtenant Interests, title to any such Unit, together with the Appurtenant Interests shall be held by the Board of Managers or its designee, corporate or otherwise, on behalf of all Unit Owners, in proportion to their respective common interests. The lease covering any Unit leased by the Board of Managers, or its designee, on behalf of all Unit Owners, in proportion to their respective common interests.

XIV. Encroachments. The Unit Owners agree that if any portion of a Unit or the common elements (whether restricted in use to an individual Unit Owner or not) encroaches upon another or shall hereinafter encroach upon another as a result of original construction or settling or shifting of the Building, or by reason of the repair or restoration by the Board of Managers of the Building, any Unit or the common elements, 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 Building or any Unit is 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 Unit Owners agree that encroachments of any portion of the Unit 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 Building shall stand.

XV. Unit Ownership. Upon the closing of title to a Unit, a purchaser shall automatically become a Unit Owner in the Condominium and shall remain such so long as such Unit is owned by such Owner.

XVI. Conveyance of a Unit. In any conveyance of a Unit either by voluntary instrument, operation of law or judicial proceeding in accordance with this Declaration or the By-Laws, the grantee of the Unit shall be jointly and severally liable with the former Unit Owner 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 right to recover from the former Unit Owner the amounts paid by the grantee therefor. “Grantee” as used herein shall not include either the holder of an institutional mortgage of record or a purchaser of a Unit at a foreclosure sale of an institutional mortgage.

XVII. Covenants and Restrictions. The use of the Unit by the Unit 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 Unit and area restricted to the Unit Owner’s use shall be maintained in good repair and overall appearance.

B. No structural alterations to the Unit or other alterations which would impair the structural soundness of the Building in which the Unit is located may be made without the written consent of the Board of Managers. Consent may be requested through the Manager, the Management Agent, if any, or through the President of the Board of Managers, if no Manager or Management Agent is employed. The Board of Managers shall have the obligation to answer within forty (40) days and failure to do so within the stipulated time shall mean that there is no objection to the proposed modification or alteration.

C. Any Unit Owner who mortgages his Unit shall promptly provide the Board of Managers with the name and address of the mortgagee.

D. The Board of Managers shall, at the request of a Unit Owner, prospective Unit Owner, mortgagee, prospective mortgagee, lessee, prospective lessee, title insurer or prospective title insurer of a Unit, report any unpaid common charges due from the Unit Owner of such Unit.

E. 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.

F. 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.

G. Regulations promulgated by the Board of Managers concerning the use of the Property shall be observed by the Unit Owners, provided, however, that copies of such regulations are furnished to each Unit Owner prior to the time the said regulations become effective.

H. The common charges shall be paid when due,

I. Occupancy of the Units shall be restricted in accordance with Section III-F of this Declaration.

XVIII. Unit Services and Utilities Funded Through Common Charges. Refuse removal and water charges for the Units and electricity used in garages (including lighting, use of power tools and electric garage door openers) shall be a common expense.

XIX. Sponsor’s Written Consent Necessary for Certain Actions Taken by Board of Managers. Notwithstanding anything to the contrary contained in this Declaration, so long as the Sponsor or its designee shall continue to own Units representing 20% or more in common interest, but in no event later than three (3) years from the date of recording this Declaration, the Board of Managers may not, without the Sponsor’s written consent, (i) make any addition, alteration or improvement to the common elements or to any Unit or (ii) assess any common charges for the creation of, addition to or replacement of all or part of a reserve, contingency or surplus fund in excess of an amount equal to the proportion of the then existing budget which the amount of reserves in the initial budget of estimated expenses for the condominium bears to the total amount of such initial budget of estimated expenses or (iii) hire any employee in addition to the employees, if any, provided for in the initial budget or (iv) enter into any service or maintenance contract for work not covered by contracts in existence on the date of the first closing of title to a Unit, (v) borrow money on behalf of the Condominium or (vi) reduce the quantity or quality of services or maintenance of the Property.

XX. Invalidity. The invalidity of any provision of this Declaration shall not be deemed to impair or affect in any manner the validity, enforceability or effect of the remainder of this Declaration and, in such event, all of the other provisions of this Declaration shall continue in full force and effect as if such invalid provision had never been included herein.

XXI Waiver. No provision contained in this Declaration shall be deemed to have been abrogated or waived by reason of any failure to enforce the same, irrespective of the number of violations or breaches which may occur.

XXII. Captions. The captions herein are inserted only as a matter of convenience and for reference, and in no way define, limit or describe the scope of this Declaration nor the intent of any provision hereof.

XXIII Gender. The use of the masculine gender in this Declaration shall be deemed to refer to the feminine gender whenever the context so requires.