AMENDED COVENANTS, RESTRICTIONS AND EASEMENTS
of
HALE ESTATES OWNERS’ ASSOCIATION
THESE AMENDED COVENANTS, RESTRICTIONS AND EASEMENTS (hereinafter referred to as the “Amended Covenants” or “Covenants”) are made this _____ day of _____, 2023 (the “Effective Date”) by the Hale Estates Owners’ Association (hereinafter “the Association”) and recorded at the Carroll County Registry of Deeds at Book ____, Page ___. These Amended Covenants hereby replace and supersede the original DECLARATION OF COVENANTS, RESTRICTIONS AND EASEMENTS made by HALE HIGHLANDS DEVELOPMENT CORPORATION of West Side Road, North Conway, Carroll County, New Hampshire, filed with Carroll County, New Hampshire on the 3rd day of March 1989, as previously updated by the Association from time to time.
The Association is owner of certain real property set forth in Appendix A (incorporated herein in its entirety) formerly known as Hale Estates Development (hereinafter “Hale Estates”) and desires to achieve certain Goals including but not limited to: promoting ecological, environmental and water conservation within Hale Estates; protecting the rights of Owners to the quiet enjoyment of their Homes, Lots and Common Property within Hale Estates; ensuring that all Homes, other structures and landscaping throughout Hale Estates are in harmony with each other and the natural surroundings; and enhancing property values in Hale Estates. To achieve said Goals, the Association hereby subjects Hale Estates, including the Lots and Common Property, to these Amended Covenants, hereinafter set forth.
The Association incorporated under the laws of the State of New Hampshire, as a non-profit corporation, and established a Board of Directors (as more particularly described in the Amended By-Laws of Hale Estates Owners’ Association) to ensure as reasonably practical that all homes, structures and landscaping throughout Hale Estates are designed, constructed, and maintained so as to achieve said Goals, to oversee and manage the maintenance and operation of the community infrastructure including the roads, water and septic systems, recreational areas, and Common Property, to enforce these Amended Covenants, and to levy, collect and disburse any Assessments hereinafter created.
As of the Effective Date hereof, Hale Estates shall be held, transferred, leased, encumbered, conveyed, improved and occupied subject to these Amended Covenants, which are intended to and shall: create mutual and equitable servitudes upon each Lot within Hale Estates in favor of each and all other said Lots; create reciprocal rights between the Owners of said Lots; create privity of contract and estate between the grantees of said Lots, and their heirs, successors and assigns; and operate as Covenants running with the land for the benefit of each and all of said Lots and their respective Owners present and future.
SECTION 1. DEFINITIONS.
a) Assessments shall mean the dues, penalties, and any other charges pursuant to Section 6.
b) Association shall mean the Hale Estates Owners’ Association.
c) Board of Directors (or Board) shall mean a group of volunteer Members of the Hale Estates Owners’ Association elected by the Members to manage the property, business, and affairs of the Association, as more particularly described in Article II of the Amended By-Laws.
d) By-Laws refers to the Amended By-Laws of the Association; incorporated herein in its entirety by reference thereto.
e) Common Property shall mean and refer to those parcels of land within Hale Estates, as distinguished from the Lots, and designated as Common Property in the Development Plan (described in Appendix A hereof), including without limitation, the private community roads, recreational areas, easement areas, common septic systems, common water systems and fire protection pond(s), serving the Hale Estates Owners’ Association.
f) Covenants refers to these Amended Covenants.
g) Design Committee refers to a group of Members consisting of at least two (2) Directors and up to three (3) additional non-Board Members, tasked with reviewing and approving (or disapproving) design plans for Homes and Improvements, Sheds, utility connections, landscaping, etc. as more particularly described in Section 8 below.
h) Development Plan shall mean and refer to a subdivision plan of all or portions of Hale Estates Development specifically containing Lot locations, entitled "Hale Estates, Conway, New Hampshire", drafted by Phillips Engineering, as approved by the Town of Conway Planning Board and recorded December 30, 1988 at Carroll County Registry of Deeds Plan Book 188, Pages 73-76, or as clarified for more specific Lot locations on revised plan(s) recorded from time to time at the Registry.
i) Fiscal Year shall begin on the first day of July and end on the 30th day of June of every year.
j) Goals of the Association as set forth in the preamble above include:
i. promoting ecological, environmental and water conservation within Hale Estates;
ii. protecting the rights of Owners to the quiet enjoyment of their Homes, Lots and Common Property within Hale Estates;
iii. ensuring that all Homes, other structures, and landscaping throughout Hale Estates are in harmony with each other and the natural surroundings; and
iv. enhancing property values in Hale Estates.
k) Hale Estates refers to the real property formerly known as the Hale Estates Development as more particularly described in Appendix A, encompassing the Lots and the Common Property.
l) Hale Estates Owners’ Association refers to an association formed of Owners of Lots within Hale Estates. The Association has incorporated within the State of New Hampshire as a non-profit Corporation having a principal place of business in the town of Conway, County of Carroll, State of New Hampshire.
m) Home means a building on a Lot in Hale Estates designed and intended for use and occupancy as a residence by a single family.
n) Improvements means but shall not be limited to, all buildings, roads, driveways, parking areas, fences, retaining and other walls, hedges, poles and any other structures of any kind constructed within the boundaries of any Lot or Common Property.
o) Lot shall mean and refer to a parcel of land with or without a building thereon located within Hale Estates bearing a numerical lot designation on the Development Plan. It shall include all the land designated by a perimeter boundary surrounding each numerical number as depicted on Development Plan.
p) Member shall mean and refer to an Owner of a Lot within Hale Estates, and therefore a member of the Hale Estates Owners’ Association.
q) Owner shall mean and refer to the record owner(s) of the fee simple title to any Lot(s) within Hale Estates but shall not include any mortgagee unless and until such mortgagee has acquired title to said Lot(s).
SECTION 2. PREMISES SUBJECT TO THESE COVENANTS.
All of the real property known as Hale Estates, as more particularly described in Appendix A, encompassing the Lots and the Common Property within Hale Estates are hereby made subject to these Amended Covenants.
SECTION 3. MEMBERSHIP AND VOTING RIGHTS IN THE OWNERS' ASSOCIATION.
a) Membership – Every Owner of at least one (1) Lot in Hale Estates shall be a Member of the Hale Estates Owners’ Association. Upon the sale of a Lot, the new Owner becomes a new Member of the Association, and the Transferor ceases to be a Member of the Association, unless the Transferor owns an additional Lot(s) within Hale Estates.
b) Voting Rights – Members of the Association in good standing shall be entitled to one (1) vote for a first Lot they own, and only one (1) additional vote for any other Lots they own, regardless of how many additional Lots they own.
c) Annual Meeting – A meeting of Members of the Hale Estates Owners’ Association shall be held annually on the first Saturday in June, unless otherwise decided by the Board, as described more particularly in Article V, Section 2(a) of the Amended By-Laws, at an appropriate facility in New Hampshire as designated by the Board of Directors. Notice of the date, time and location of the Annual Meeting shall be provided to all Owners not less than thirty (30) days prior to the date of the meeting.
SECTION 4. RIGHTS AND EASEMENTS OF OWNERS.
a) Owner’s Easements of Enjoyment – Every Owner shall have rights and easements of use and quiet enjoyment, in common with others, in and to the Common Property and such rights and easements shall be appurtenant to and shall pass with the title to every Lot and shall be subject to the limitations set forth herein, which rights and easements shall not be exercised in a manner so as to disturb the similar rights of others.
b) Private Property Easements – Every Owner shall have rights and easements, which may be exercised by the Owner and their family and invitees, over the Common Property for reasonable pedestrian recreational use, including but not limited to hiking, jogging and ski touring, provided that such use shall not damage or destroy any trees or other natural growth thereon. Such rights and easements shall not extend to any portion of other Owners’ private property.
c) Limitations of Owners’ Easements – The rights and easements created pursuant to this Section shall be subject to the following limitations:
i. liens and encumbrances currently of record, if any;
ii. the Association’s right to use any Common Property from time to time in connection with the sale of Lots remaining to be sold;
iii. the Association’s right to construct Improvements upon Common Property for common use and enjoyment;
iv. other Owners’ rights to similar easements;
v. the rights of lessors or renters of any Home on a Lot to enjoy the easements that appertain to the leased or rented Home; and
vi. the Association’s right to grant and reserve easements and rights of way through, under, over and across the Common Property, for access and the installation, construction, maintenance, operation, repair, and inspection of all utility services employed in connection with operation of Hale Estates, as more specifically provided in Section 5 below.
SECTION 5. RIGHTS AND EASEMENTS OF THE ASSOCIATION.
a) Title to Common Property – The Association shall retain legal title to the Common Property and may at any time convey all or portions of the Association’s private roads on Common Property within Hale Estates to the Town of Conway for use and maintenance as public streets.
b) Association Easements –Easements for installation and maintenance of public or private utilities and drainage facilities, which may traverse over, upon and under any land within Hale Estates, provided that such easements do not unreasonably interfere with any existing Home, are expressly reserved by the Association, and are hereby made subject to these Amended Covenants. More particularly, the Association reserves unto itself, its successors and assigns, perpetual easements for access across areas of Common Property (the “Easement Areas”), the construction of Improvements on Common Property, and the installation, construction, reconstruction, maintenance, repair, operation and inspection of sewer, water, electricity, telephone, gas, and drainage facilities on, through and under the Common Property, for the benefit of the Association. The Association, including any Owner, upon approval of the Board, shall have the right, to do whatever may be requisite for the enjoyment of the rights herein granted, including the right of clearing said Easement Areas of timber, trees, or shrubs, or any building, fence, structure or paving erected on or laid within said Easement Areas, and no charge, claim or demand may be made against such parties for any or all activities in the exercise of their rights herein granted. The provisions of this Section shall run with and bind the land forever.
SECTION 6. COVENANT FOR MAINTENANCE ASSESSMENTS.
a) Creation of Liens and Personal Obligations – Each Owner shall be legally bound to pay to the Association annual and special Assessments to be fixed and collected from time to time as hereinafter provided. The annual and special Assessments, together with interest thereon computed from the due date of each Assessment at a rate of one and one-half percent (1.5%) per month and costs of collection, including reasonable attorney’s fees, shall be a charge on the Lot and a continuing lien upon the property against which each such Assessment is made and shall also be the personal obligation of the Owner of such property as of the time the Assessment became due. Said lien may be enforced in the same manner as a Power of Sale Foreclosure pursuant to New Hampshire Revised Statutes Annotated Chapter 479.
The Association shall have the right to impose a reasonable monthly service charge upon each Owner whose Assessment is thirty (30) days overdue, in addition to the interest imposed as provided herein. The Secretary of the Board of Directors shall, upon conveyance of any Lot, issue a certificate of payment of Assessments and release of lien if no outstanding Assessments shall be due from said Lot; a reasonable fee may be charged to the Owner for issuing such a certificate.
The Association, through its Board of Directors, reserves the right to work with delinquent Owners to develop reasonable payment plans and/or to consider legitimate hardships and other circumstances, at the discretion of the Board.
b) Purpose of Assessments – The Assessments levied herein shall be used in a manner consistent with achieving the Goals of the Association, including for the purposes of managing, maintaining and caring for the Common Property, the common water systems, common septic systems, and the community roads within and serving Hale Estates.
c) Basis of Assessments – The amount of the annual and any special Assessments to be levied against the Owner(s) of each Lot shall be the same for each such Lot in Hale Estates, with the proviso that only homeowners connected to community septic will be assessed septic fees.
d) Annual Assessments – The Board shall, after consideration of the Association's current costs and future needs as reflected by a budget adopted at the Annual Meeting of the Association, fix the actual Assessment in effect for any year. It shall be an affirmative obligation of the Board to fix such Assessments at an amount sufficient to manage, maintain and care for the Common Property and to properly discharge its other duties and obligations set forth herein.
e) Special Assessments – In addition to the annual Assessment, the Board may levy a special Assessment in any year subject to subparagraphs (i) and (ii) herein to obtain funds necessary for a duly authorized purpose under the Association’s By-Laws and these Covenants. Special Assessments may be levied in the Board’s discretion for:
(i) emergency expenses – those in which the funds are necessary for addressing emergency maintenance, replacement and/or repair of critical community infrastructure, and which may be authorized without Association approval solely by a majority vote of the Board of Directors; and
(ii) non-urgent expenses – those in which the funds are requested by the Board for addressing non-urgent improvements, maintenance, replacement and/or repair of community infrastructure and/or Common Property, and which must be authorized by two-thirds (2/3) of the eligible voting interest of the Association. Notice setting forth a proposal including the reasons for such a non-urgent special Assessment shall be provided to all Owners at least 30 days before voting on such special Assessment.
f) Due Dates for Assessments – The total annual Assessment shall become due and payable 30 days from invoice each fiscal year unless more frequent partial payments are authorized by the Board of Directors and/or the Members. The due date of any special Assessment shall be fixed in the resolution authorizing such Assessment.
g) Priority – The lien for Assessments provided herein shall be subordinate to any first mortgage lien of an institutional lender of record that is recorded at the Carroll County Registry of Deeds prior to recording a Notice of Lien as herein provided.
h) Purchaser Bound – A purchaser of a Lot shall take title subject to any lien for all unpaid Assessments made against previous Owners thereof regardless of when such Assessments were made, except that a first mortgagee or other purchaser at a foreclosure sale of a first mortgage lien or at a sale in lieu of such foreclosure and a purchaser from a first mortgagee who purchases at such a foreclosure sale or such a sale in lieu of foreclosure, shall not be liable for payment of Assessments unpaid and due as of the time of his acquisition but shall be liable for Assessments becoming due thereafter.
i) Capital Asset Replacement Fund – The Association has established a Capital Asset Replacement Fund (“CARF”) to provide for the substantial repair of, or replacement of, the Association’s depreciating physical assets. Ordinary maintenance and repairs of the Association’s physical assets shall be funded out of the Association’s annual operating budgets. The Board of Directors (through a Finance Committee) shall identify the qualifying major asset(s) and determine the annual contribution rate required to fund the straight-line depreciation of those assets. The Board of Directors shall approve the annual rate of contribution as part of the annual budget process. A portion of the annual Lot Assessments shall be deemed the mandatory CARF contribution for each Lot and shall be separated and segregated from the Operating Account of the Association. At the discretion of the Board, portions of said CARF funds may be invested in low or no-risk devices such as Certificates of Deposit and guaranteed Money Market accounts at FDIC insured institutions.
Funds disbursed from the CARF shall be used to repair or replace (all or substantially all) of an Association asset in need of such repair or replacement upon the affirmative vote of a majority of the Board members present at a meeting of the Board of Directors. Any such action of the Board of Directors shall be recorded in the minutes and the Members shall be notified of the action taken.
SECTION 7. LAND USE.
a) Setback – No building or other structure shall be constructed or placed on a Lot within 50 feet from the center of any private road shown on the Development Plan as Common Property or 20 feet from the boundaries of an adjacent Lot. When two or more Lots are used for only one Home, the said boundaries shall refer to any property line bordering on the land of an adjoining property Owner. Setback requirements may be varied on an individual basis by making an application for a variance to the Design Committee, which may in its discretion grant permission for such a variance (or a modification thereof).
b) Residential Use – Each Lot shall be used only for residential purposes. Only one single-family dwelling and a garage, whether attached or detached, for not more than three cars, may be constructed on any Lot. No separate in-law dwellings or accessory dwelling units (ADU’s), which is independent of the Home (e.g., separate kitchens, living rooms, entrances, etc.), whether attached or detached, shall be permitted in Hale Estates.
c) Rentals – Homes may not be rented out for periods of fewer than thirty (30) days and no rentals may be made to more than one tenant or family in any thirty (30) day period. In the event an Owner wishes to rent out their home, the Owner must provide a copy of the Lease for said rental to the Secretary of the Board prior to the commencement of said rental. Said Lease shall be for a term of at least thirty (30) days without exception. Said Lease must also state that the tenant (including tenant’s family) shall be responsible to comply fully with all rules, regulations and restrictions promulgated in these Covenants. Upon notification to the Board of any violation(s) of these Covenants by any tenant residing in a Home, the Secretary shall send a notice to the Owner of the rented property requesting that their tenant cease and desist such violation(s) immediately. Thirty (30) days after sending said notice, any continuing violation by the tenant shall result in a fine of $25 per day against the Owner until the violation has been removed, and such fine(s) shall be assessed in their aggregate against the Lot.
d) Home Office Use – Notwithstanding the foregoing restriction to residential use, an Owner may maintain and utilize an office in their Home for the conduct of the Owner’s trade, business professional or commercial activity or other occupation, which conduct is incidental to the Owner’s residential use, provided that any such use of a home office does not cause a disturbance or inconvenience to any other member of the Association and is not in violation of the Zoning Ordinance of the Town of Conway.
e) Single-Family Home on Multiple Lots – An Owner of two or more adjacent Lots may place a single-family Home anywhere within those multiple Lots including but not limited to on the boundary line between the multiple Lots so long as the owner complies with all Federal, State, Town and Association laws, rules and regulations. However, notwithstanding this right, an Owner shall still be responsible for paying Assessments on each of their multiple Lots separately. Setback requirements for building a single-family home on multiple Lots shall be determined from the outer edges of the combined Lots.
f) Private Septic Systems – All private septic systems shall be constructed in compliance with applicable law. All private subsurface sewage disposal systems shall be operated, maintained in good operating condition, and monitored to prevent sewage or waste to reach the surface and to avoid creation of a nuisance or health hazard. In the event of a private sewage system failure, the Owner shall promptly service and/or replace such failed system (or faulty components thereof).
g) Common Septic Systems – Homes built on certain Lots in Hale Estates connect to common leach fields, which are shared by multiple Homes; these certain Lots are designated on the Development Plan. Garbage disposals are specifically prohibited and may not be installed in such Homes. The Owners of such Homes are required to pay a proportional cost for maintenance of their common septic systems. The Association may promulgate rules related to such common systems and shall charge and administer Assessments needed to properly maintain the common septic systems, to include providing to the Board proof of septic tank pumping at least once every three (3) years.
h) Community Water System – All Homes shall be required to connect to the community water system serving Hale Estates and operated by the Association. No private wells are allowed on any Lot, except as provided below in Section 7 (p)(ii) with respect to open loop geothermal heating and cooling systems.
i) Types of Buildings – No mobile homes, trailers, recreational vehicles or similar temporary or movable vehicle or structure shall be used for residential purposes on any Lot or permitted to remain on any Lot, provided that a trailer or shed used only for construction purposes may be placed on a Lot during active construction thereon for a period not to exceed twelve (12) months.
j) Sanitation – Garbage and rubbish shall not be dumped or allowed to remain on any Lot except as contained in a suitable closed receptacle screened from public view. This provision shall not be deemed to prohibit properly placed and maintained compost heaps upon any Lot. No incinerator shall be erected or maintained on a Lot. For sanitary considerations and privacy for the construction crews and Owners, it is required to place a portable toilet (Port-a-Potty) on a Lot during active construction for a period not to exceed twelve (12) months, at Owner's expense.
k) Sheds – A Shed is permitted for the storage of garden and lawn care equipment, tools, and implements used in the maintenance of a Lot having a Home located thereon. Such sheds must be finished (siding, trim, roofing, etc.) in a manner that is visually consistent with the Home’s finish in order to minimize the visual impact to neighbors. The maximum size of any such shed shall not exceed four hundred (400) square feet. The shed must be located a minimum of 15 feet from the rear and side boundaries of the Lot. Design plans disclosing the size, placement and finish of such sheds must be submitted to and approved by the Design Committee before construction is permitted. The Design Committee shall act on an Owner's request within thirty (30) days of plans submittal.
l) Hunting – No hunting, trapping or other interference with the natural life cycles and patterns of birds and animals shall be permitted in Hale Estates except as may be necessary to control pests or vermin. No firearms whatsoever shall be discharged within Hale Estates.
m) Certain Motorized Vehicles – No motorbikes, motorcycles, minibikes, snowmobiles, or all-terrain vehicles shall be operated on any Lots or Common Property within Hale Estates, except that such vehicles may be used on private driveways and community roads to access public roads or designated snowmobile trails, provided that such vehicles are legally permitted to operate on public roads. No truck larger than a three-quarter ton pickup shall be kept or used by an Owner within Hale Estates. No motorbikes, motorcycles, minibikes, snowmobiles, all-terrain vehicles, trucks larger than a three-quarter ton pickup, recreational vehicles, trailers, commercial vehicles, or boats may be parked or kept on a Lot within Hale Estates unless stored in a garage so as not to be visible from the private road or adjoining properties.
n) Occupancy – No Home constructed on any Lot shall be occupied or used for residential purposes until said Home is substantially completed, nor shall any structure on any Lot other than said Home, be used or occupied for residential purposes.
o) Completion of Construction – No excavation shall be made on any Lot except for the purposes of building thereon, and construction of all buildings and other structures on any Lot shall be completed within one year from the date of commencement of excavation or other building operation. Completion shall include, without limitation, exterior finishing, landscaping, decorating and driveway. Driveways shall be finished with asphalt, stone, crushed gravel, or any finished driveway material identified in the plot plan and approved by the Design Committee.
p) Minimum Construction Standards – Each Home shall be not more than two stories above ground in height and shall have a permanent, year-round heating system. The minimum square footage for all Homes shall be at least 1500 square feet finished space for a one-story building, or 1800 square feet finished space for one and one-half to two story buildings; the square footage of garages, breezeways, decks, porches, patios, terraces, sheds, unfinished basements, crawlspaces, and attics do not count toward minimum square footage. Industry standard methods shall be employed for calculating square footage.[1]
Lot grades shall not be changed in such a way as to divert the natural flow of water onto adjoining Lots, or to flood or damage a community road or common drainage system. No building shall be erected having a single tar paper roof or exposed concrete block foundation or walls in excess of two (2) feet.
All buildings with wood siding shall have paint or stain applied thereto. All roofs shall be shingled or covered by dark coverage with no rolled paper exposed. Building color shall be harmonious with the characteristics of the development as approved by the Design Committee. Lots 4 - 11 shall have minimum building sizes of 1800 square feet for one story and 2400 square feet for all others. All construction shall be completed in a manner consistent with achieving the Goals of the Association and shall meet the approval of the Design Committee. Cedar shake siding, vinyl siding and concrete siding are acceptable. Standing seam metal roofing is acceptable.
i. Solar Panels – Solar panels for residential use, whether for hot water or photovoltaic are permitted within the following guidelines:
1) Solar panels must be mounted on the house, garage or approved garden shed roof. No panels visible from the street or visible to neighbors may be mounted on the ground or on platforms on the ground.
2) Collectors mounted on roof surfaces that are visible from the road or visible to neighbors must be:
a. mounted at the same slope (pitch) as the roof
b. mounted so as to be parallel with the roofline
c. a tilt rack frame may be used if parallel mounting at the existing roof pitch will decrease the panels’ performance due to roof pitch being too shallow or where parallel mounting may cause the panels to overheat during the summer season – requiring approval from the Design Committee
3) Collectors that are not visible from the road or visible to neighbors may be mounted without restriction.
4) Design plans for any solar panel systems must be submitted to the Design Committee for review and approval.
ii. Geothermal Heat & Air Conditioning – A geothermal energy system will provide Owners the ability significantly to reduce their environmental footprint while realizing financial savings and limiting their dependence on fossil fuels.
1) Closed Loop Systems – A closed loop system utilizes the same water and environmentally friendly antifreeze mixture, which is continually circulated throughout the loop field (vertical or horizontal loop fields). Loop fields must be designed and set within the property setbacks requirements as defined in Covenant 7(a).
2) Open Loop Systems – An open loop system requires an ample source of groundwater and Owners cannot utilize the community water supply for their open loop system. A separate well must be drilled to the water source. The water is pumped up through the separate well pipes into the heat pump where the heat is extracted and then sent down into the same well or a return well, where it re-enters the ground water source. A dry well must be installed to capture any excess water resulting from an open system bleed off. Any above ground system discharge is strictly prohibited.
a. Restrictive Covenant (for open loop systems) – Owner is required to execute a restrictive covenant (see format below) to this effect:
Restrictive Covenant (Open system)
Separate well water supply (geothermal open system) is limited to the geothermal system operations only. This water supply cannot be used for any other purposes such as irrigation, exterior water faucets, or any household use.
In accordance with the provisions of these Amended Covenants, it is acknowledged by this Declaration, dated (insert geothermal covenant filing date) and recorded at the Carroll County Registry of Deeds in Book (insert geothermal covenant filing book #) at Page (insert geothermal covenant filing page #), that the Design Committee of the Board of Directors of Hale Estates has approved plans for construction of improvements including a geothermal heating and air conditioning system based on a shaft bored into the earth , said improvements be constructed on certain real property located in CONWAY, New Hampshire being described as Lot (## based on HEOA ‘as built’ plans) in a deed of (insert original filed deed owners name/names) dated (insert original owner deed filing date) and recorded at the Carroll County Registry of Deeds in Book (insert original owner deed filing book #) at Page (insert original owner deed filing page #). As a condition of granting approval for the geothermal well system the current owners of said Lot, (insert current owner names/names), have for themselves, their successors and assigns, agreed that the geothermal well system shall not be used to produce water for domestic use, including, without limitation, use for consumption, plumbing, washing, lawn maintenance, vehicle cleaning, or any other type of use resulting in permanent extraction of the water.
Witness their hands and seals this (insert day) day of (insert month and year)
______________________________
Witness (insert owner name)
______________________________
Witness (insert owner name)
The executed restrictive covenant will be filed with the Carroll County Registry of Deeds and a registered copy must be provided to the Design Committee for the house design approval file.
Approval
Proposed design plans for any geothermal system must be submitted to the Design Committee for review and approval.
q) Landscaping – Within one year after construction has been completed on a Home, all disturbed ground surfaces must be landscaped in a manner consistent with achieving the Goals of the Association.
r) Subdivision – No Lot shall be subdivided except for purposes of conveying normal and customary utility easements or permitting an exchange or conveyance between Owners of contiguous Lots, provided said exchange or conveyance does not increase the number of Owners and does not violate state and local subdivision or zoning laws or building codes.
s) Use of Property – No Lot or portion of Common Property may be used in any manner inconsistent with the residential and natural ecological character of Hale Estates nor in any manner inconsistent with achieving the Goals of the Association. For example, no noxious or offensive uses of any Lot or portion of Common Property shall be permitted where such uses disturb Owners’ quiet enjoyment of their Homes or create an annoyance or nuisance to other Owners.
t) View – Tanks for the storage of fuel shall be installed underground or kept inside a building. No clothes shall be hung or placed within the public view or within the view of other Owners. The exterior of buildings shall be maintained in a proper state of repair. No signs or displays, including without limitation commercial and political signs and shall be erected or maintained within view from the private road or an adjoining property. This prohibition shall not be construed to include properly erected ‘for sale’ signs of a reasonable size erected completely within the lot lines of the property for sale. All lawns or other suitable landscaped areas shall be maintained in an attractive manner consistent with achieving the Goals of the Association. No trash, waste, filth, tools, garden equipment, or children’s playthings shall be allowed to accumulate in such manner as to give an unsightly appearance. No unregistered motor vehicle of any type and no junk shall be allowed to remain within Hale Estates, except out of view within an Owner’s garage. No wall, screen or fence erected at a boundary shall be constructed with a height of more than seven feet above ground level. No television antennae or satellite dish larger than 24” diameter shall be permitted. No permanent tenting is permitted, and temporary tenting shall be restricted so as not to be visible from adjoining properties, unless approved by the Design Committee. No wind generators or towers of any kind or for any purpose may be erected, whether of a temporary or of a permanent nature.
u) Swimming Pools and Tennis Courts – Private swimming pools and tennis courts or similar structures for outdoor physical activities or games shall not be erected or constructed in the front of a Home and, if present, shall be adequately fenced. The swimming pool or tennis court must be located a minimum of 15 feet from the rear and side boundaries of the Lot. Design plans disclosing the size, placement and finish of such structures must be submitted to and approved by the Design Committee before construction is permitted. The Design Committee shall act on an Owner's request within thirty (30) days of plans submittal. Consistent with achieving the Goal of quiet enjoyment for all Owners, no such structures for outdoor physical activities or games shall be allowed to become offensive or to become a noise nuisance to neighbors.
v) Buffer Zones – The Owner of each Lot shall maintain a vegetative buffer for a distance of at least ten (10) feet from all Lot boundaries excluding boundary lines having frontage on the road. Removal or topping of trees having a diameter greater than four (4) inches above the ground level, within the buffer zone, shall require approval of the Board of Directors. At no time will it be permitted for an Owner to cut the lawn, trim bushes, or remove trees on any portion of Common Property owned by the Association without the written permission of the Board based on a recommendation of the Design Committee.
w) Use of Roads – No obstruction of traffic on any roads or blocking of driveway entries to any Homes shall be allowed. Owners shall be responsible for any such obstruction by members of their household, their lessees, and guests.
x) Mineral Waste Products – Gravel, loam, compost, leaves, fertilizers, or other organic or mineral waste product or commodity shall not be piled to a height of more than three feet or stored within twenty (20) feet of boundaries with adjoining Lots, unless such piles are removed within two (2) weeks.
y) Snow and Ice – Snow and ice shall not be dumped, snow-blown, plowed or otherwise moved from any Lot or driveway onto community roads; such actions may create possible obstructions or slip hazards to vehicle or pedestrian traffic. It is the responsibility of Owners to inform any hired snow removal contractors of this restriction. Snow and ice shall not be piled onto community roads so as to interfere with the view of other Owners.
z) Animals – Common domestic animals may be kept by Owners in their Homes or on their Lots for noncommercial purposes only. Nondomestic animals are not allowed. No kennels are permitted. Domestic animals shall be limited to dogs, cats, fish, birds, hamsters, rabbits and similar common pets.
aa) Rules and Regulations – The Board is empowered to adopt and amend, from time to time, rules concerning the use of the Common Property, provided that such rules are not contrary to, or inconsistent with, these Covenants. Copies of any such rules shall be furnished in writing to all Owners prior to the time when they become effective and shall not be violated. A vote of a majority of Owners present at a meeting of the Association may overrule and declare void any such rule promulgated by the Board, provided that notice of the proposal to overrule shall be included in the notice of the meeting.
bb) Disturbance of Streams – No use shall be made of any Lot that will reasonably affect the flowage or quality of ground water or streams within Hale Estates without prior approval of all local, state and county regulatory agencies and approval of the Board of Directors.
cc) Timesharing – No timesharing of Homes shall be permitted. “Timesharing” as used herein shall mean the conveyance of the right to occupy a Home for less than 60 days each year for a period of more than five years, regardless of whether or not such right is accompanied by conveyance of any property interest (e.g., fee simple or leasehold interests).
dd) Variances – The Board of Directors shall have the authority to approve a variance from the provisions of this Section 7, provided that there is substantial compliance with said provisions and provided that other Owners are not adversely affected to a material degree.
SECTION 8. DESIGN
a) Design Committee – A Design Committee shall review and approve (or disapprove) design plans for the development of Lots, including without limitation, the exterior appearance and finish of Homes, Improvements, Sheds, utility connections, disability accommodations, and landscaping, to ensure as reasonably practical that the structures and landscaping throughout Hale Estates are designed and constructed to achieve the Goals of the Association. The Design Committee shall consist of a minimum of two (2) Directors and a maximum of three (3) non-Board Association Members in good standing, as further described in the Amended By-Laws (Article IV, Section 1(a)).
b) Procedure – No Home or other Improvement shall be commenced, erected, placed or maintained on any Lot and no changes or alterations shall be made to the exterior of any such Home or other Improvement until adequate plans, specifications, site plans and other pertinent data showing the nature, color, shape, height, location, dimensions, materials, landscaping, external decorations, and other information as may be required by the Committee, have been approved in writing by the Committee as to harmony of design and location in relation to, and compliance with, the general specifications and conditions set forth in Appendix B and the requirements hereof.
The Committee shall approve or disapprove, in writing, any plans submitted to it within thirty (30) days after all required data has been provided. Failure of the Committee to act on any proposed plans within said thirty (30) days shall be deemed approval of the plans as submitted. Any disapproval of plans shall be accompanied by a written statement of the reason or reasons therefor. All construction shall comply with the plans as approved.
Approval by the Committee shall not relieve any Owner of his or her obligation to comply with all government laws, codes and regulations which may apply.
The Board shall be empowered as attorney-in-fact for the Association to order any Owner to change or remove any construction or alteration undertaken in violation of this Section. In the event any Owner fails to comply with an order of the Committee, the Board may enter the Lot and correct such condition at the Owner’s expense, or at its option may commence legal proceedings as attorney for the Association to enforce such order. The costs of such legal proceedings initially shall be treated as a special assessment pursuant to Section 6(e) hereof and the Board, on behalf of the Owners shall, recover its costs, including reasonable attorney’s fees, in any successful proceeding.
c) Inspection of Utility Connections – Utility connections shall be made by the utility vendor (e.g., Iron Mountain, Eversource, etc.) and inspected by the Town of Conway when required by town ordinance. Should any connection be made without necessary approval, the Owner shall be liable for the excavation and disconnection of same.
SECTION 9. MAINTENANCE. In addition to its other duties and responsibilities as set forth herein, the Board shall provide all maintenance of the following properties:
a) Private Roads – The Board shall provide for maintenance and repair of all private roads within Hale Estates, including snow and ice removal, and shall have the power and authority to issue and collect special assessments for said maintenance and repair. These maintenance and repair responsibilities of the Board may be managed by the Roads and Landscaping Committee (see e.g., Amended By-Laws, Article IV, Section 1(c)).
b) Common Water Systems – The Board shall provide for maintenance and repair of all water systems within Hale Estates, including periodic cleaning and testing, and shall have the power and authority to issue and collect special assessments for said maintenance and repair. These maintenance and repair responsibilities of the Board may be managed by the Water Committee (see e.g., Amended By-Laws, Article IV, Section 1(d)).
c) Common Septic Systems – The Board shall provide for maintenance and repair of all common septic systems within Hale Estates and shall have the power and authority to issue and collect special assessments for said maintenance and repair.
d) Open Fields – The Board shall be responsible for mowing and maintaining open fields on Common Property within Hale Estates. The Board shall not be responsible for mowing and maintaining lawns or open fields on Lots within Hale Estates, where Owners of such Lots can and do perform such mowing.
e) Other Common Property – The Board shall be responsible for the maintenance of all other Common Property.
f) Miscellaneous – The Board shall provide such other community services as shall be requested by a majority of eligible votes, voting in person or by proxy, at an Association Meeting.
SECTION 10. GENERAL PROVISIONS.
a) Duration – The restrictions, easements and other provisions of these Covenants, as may be amended from time to time, shall run with and bind the Lots, and shall inure to the benefit of and be enforceable by the Board and the Owners of the property subject to said Covenants, and their respective legal representatives, heirs, successors, and assigns, forever, unless earlier terminated by a written instrument signed by at least two-thirds (2/3) of the then eligible votes, which instrument expressly terminates the Covenants and is recorded at the Carroll County Registry of Deeds, provided that written notice of the termination has been provided to every Owner at least 60 days in advance of such termination.
b) Notices – Any notice required to be provided to any Owner(s) under the provisions of these Covenants may be properly provided when sent either electronically (email) or via the U.S. Mail to the last known (email or physical) address of the person who appears as Owner on the records of the Board at the time such notice is provided.
c) Enforcement – Enforcement of the provisions hereof shall be by any proceeding at law or in equity by the Board or by any individual Owner against any person or persons violating or attempting to violate any covenant or restriction, to restrain violation and/or to recover damages, and against their property to enforce any lien created by these Covenants. Failure to enforce any covenant or restriction herein contained shall not be deemed a waiver of the right to do so thereafter.
d) Severability – Invalidation of any one or more of these covenants or restrictions by judgment or Court order shall not affect any other provision(s), which shall remain in full force and effect.
e) Amendments – Except as otherwise provided in Section 10(f), the provisions of these Covenants may be amended from time to time by at least two-thirds (2/3) of the eligible votes, cast in person or by proxy at an Association meeting held in accordance with the provisions of the Amended By-Laws, which amendment to the Covenants shall be effective immediately and shall be recorded at the Carroll County Registry of Deeds as soon as reasonably possible; provided that notice of any such proposed amendment was previously sent to every Owner at least thirty (30) days in advance of the Association Meeting when such proposed amendment is considered.
f) Non-Amendable – No amendment to these Covenants shall be effective, where such amendment would relieve the Board from its maintenance obligations as set forth in Section 9.
g) Legal Costs – In the event that any Association Member shall bring a legal action against the Association, whether affirmatively or through a counterclaim(s), the Board of Directors or any individual member of the Board of Directors in their capacity as a Board Member, and said legal action shall terminate, fail or otherwise be unsuccessful for said Association Member, all legal costs of the Association in defense of said action whatsoever and howsoever arising shall be paid by the Association Member instigating the legal action, and shall be assessed against the Lot of said Association Member as a special assessment. Notwithstanding any precedent or Act to the contrary, the Association shall in no event ever be liable for the legal costs of any Association Member who brings an action against the Association, regardless of said Association Member being the prevailing party in any such action. Any legal costs incurred by said Association Member shall be borne solely by said Association Member.
IN WITNESS WHEREOF,
THESE AMENDED COVENANTS, RESTRICTIONS AND EASEMENTS OF HALE ESTATES OWNERS’ ASSOCIATION
are executed this ___ day of _______, 2023.
By: ______________________
Mark R. Benedict
Secretary, Board of Directors
HALE ESTATES OWNERS’ ASSOCIATION
STATE OF NEW HAMPSHIRE
CARROLL COUNTY,
The foregoing Instrument was acknowledged before me this ____ day of _______, 2023
by Mark R. Benedict, Secretary, Board of Directors
(on behalf of the corporation Hale Estates Owners’ Association)
_____________________________
Justice or the Peace
APPENDIX A
LEGAL DESCRIPTION OF LAND TO WHICH
AMENDED COVENANTS APPLY
PARCEL I (Sparks Parcel)
All that portion of the former Matthew Hale Farm lying West of the Boston and Maine Railroad and West of the West Side Road, and shown as Parcel 1 on a plan entitled, "Plan of 2 parcels of land in Conway, New Hampshire. Being a portion of the Gladys E. Hale property known as the Matthew Hale Farm. Surveyed 1960 by Roger S. Burnell, Conway, N.H." Said Parcel 1 is further described as follows:
Beginning at a stone post in the West line of the Boston and Maine Railroad right of way, said stone post being at the Northwest corner of the old Oliver and Samuel Sparhawk Cemetery, said stone post also being in the North line of land of Leonard R. and Naydene R. Drew, formerly of Fred H. Sawyer, and known as the Samuel Hayes Farm, and said stone post being at the Southeast corner of Parcel 1 herein conveyed;
Bearing the following courses and distances by land of said Drews:
South 85° West by old wire fence, 115.5 feet to a stone post and iron pipe; South 16° 30' West still by old wire fence, 106 feet to 2 stones and an iron pipe;
North 75° 30' West up and over the ridge, 1,765 feet to a stone post at the East side of an old road;
Same course 2,284 feet to a bronze pipe at the East side of an old road leading South to the Passaconaway Road;
Same course, 653 feet to a stone post on the Conway-Albany Town Line, said stone post being at the Northwest corner of land of said Leonard R. and Naydene R. Drew, and said stone post being on the East line of land of the United States Government (White Mountain National Forest) known as Tract 14a—V, formerly of the Conway Lumber Co.;
Thence North 6° 20' East, by said Town Line, 324 feet to an iron bar at the Northeast corner of land of said United States Government, said iron bar also being at the Southeast corner of land of the Kennett Co., formerly of Mary A. Coolidge;
Thence North 5° East still by said Town Line and by land of said Kennett Co., 732 feet to an iron bar beside a hemlock tree at the Southwest corner of land of Lucille S. Marshall, formerly of Harry L. Smith;
Thence South 75° East, by land of said Marshall, 900 feet to the center of said old road leading out to the Passaconaway Road;
Thence same course, 1,195 feet to a cement post at the Southeast corner of land of said Marshall, said cement post being also at the Southwest corner of land of Harry P. DeWitt, formerly of Edwin R. and Perley L. Walker, known as the Samuel K. Merrill Farm;
Thence approximately South 73° 30' East, by land of said DeWitt, and partly by old wire fence, approximately 2,780 feet to a corner of fences at said Boston and Maine Railroad land;
Thence approximately South 6° 30' West, by said railroad right of way, approximately 765 feet to the bound begun at.
Containing 107.4 acres.
TOGETHER WITH a right of way 50 feet in width as described in Warranty Deed of William F. Sparks et ux to Danny S. Quint, ante.
MEANING AND INTENDING to convey the same premises conveyed to Danny S. Quint (Sr.) by Warranty Deed of William F. Sparks et ux, recorded November 19,1986 at said Registry Book 1161, Page 330.
PARCEL II (Drew Parcel)
A certain tract of land located west of railroad track land or right of way known as the Conway Scenic Railroad and south of land of Sparks, described as follows:
Bounded on the West by land of the United States of America (White Mountain National Forest), on the North by land of said Sparks; on the East by said railroad land or right of way, and bounded on the South by land of Velt and land of Kennett or Kennett Corporation. Said parcel to contain not less than ninety—five (95) acres of land.
MEANING AND INTENDING to describe those premises conveyed to Danny S. Quint (Sr.) by warranty deed of Leonard S. Drew and Naydene R. Drew recorded 18 March 1988 at Carroll County Registry of Deeds Book 1311, Page 391.
TOGETHER WITH the various rights of way and easements which serve both said parcels.
MEANING AND INTENDING to describe as Parcels I and II all and the same premises conveyed to Hale Highlands Development Corporation by Warranty Deed of Danny S. Quint, Sr. recorded December 30, 1988 at said Registry Book 1363, Page 258.
APPENDIX B
CONDITIONS AND GENERAL SPECIFICATIONS FOR
THE DESIGN OF ALL STRUCTURES
PURPOSE: The purpose of these conditions and General Specifications is the following:
1. To ensure that all houses and other structures built on Lots within Hale Estates are in harmony with each other in terms of exterior building materials and their colors.
2. To ensure that all houses and other structures are built so as to minimize their visibility from other houses within Hale Estates.
3. To ensure that all houses and other structures are built in harmony with the land so as to minimize the negative impact upon the natural landscape.
CONDITIONS AND GENERAL SPECIFICATIONS: In addition to the provisions of Section 7 (a) of the Covenants, the following shall apply to all structures:
1. Exterior building siding shall be wood, vinyl, stone or brick.
2. Exterior wood siding shall be sealed, stained, or painted as approved by the Design Committee.
3. Roofs shall be dark in color.
4. Structures shall be sited so as to cause minimum disruption to existing vegetation, existing slope of the land, and existing patterns of site drainage.
5. Any exterior lighting shall be such as not to cause undue glare towards any adjacent home.
6. All power and telephone lines shall be underground.
[1] See e.g, https://www.bankrate.com/real-estate/determine-square-footage-of-home/ or https://www.archtoolbox.com/building-area-calculations/