Memberships

 

 

Owner Members

 

1. Owners to be Members: Each Owner will be a Member, and only Owners will be Members and for that purpose.

   • The Encumbrance and restrictive covenants will be noted against the Owner's Title in favour of the Association, whereby each Owner covenants to become and remain a Member, and to perform the obligations of a Member as set out in this Constitution and otherwise containing terms required by the Association.

   • Each Member will, prior to settling the sale of a Property, procure the purchaser to enter into, execute and deliver to the Association a deed of covenant in favour of the Association, wherein the purchaser covenants to become (contemporaneously with the transfer of the Property), and remain, a Member, and to observe and perform the obligations of a Member as set out in this Constitution. The deed of covenant or encumbrance will be prepared by the Association's solicitors, and the selling or transferring Member will pay the reasonable legal costs and disbursements of the Association's solicitors.

   • The rights, privileges and obligations of a Member are not assignable (except by transfer of the Property to which membership is associated).

   • If there is more than one Owner of a Property, such Owners must collectively constitute one Member and the liability of such Owners, in relation to their membership, will be joint and several.

   • Membership of the Association cannot be terminated, and an Owner cannot resign as a Member.

   • A Member ceases to be a Member immediately on the registration of a transfer of the Owner's Title {after the Association has consented to the transfer in terms of rule 9.2.3) provided that such cessation will not relieve a person of any obligation or liability arising before that person ceased to be an Owner.

   • Each Member will, immediately before ceasing to be an Owner, provide the Association with the details and documents necessary for the maintenance of the register of Members pursuant to rule 4.10 in respect of the new Owner of the Property and, upon entry of the details into the register, the new Owner will become a Member.

2. Fee. The Association will be entitled from time to time to set such reasonable fee in relation to the issue of a membership or transfer of a membership as the Association in its sole discretion determines. If the Association incurs third-party costs in relation to the issue, or transfer, of a membership, the applicant or seller will meet those reasonable third party costs.

3. Members of Staged Development. The Members acknowledge that the Kensington Park may be developed in stages, with new Owners becoming Members as additional land is added adjacent to Kensington Park and/or as each stage is completed.

4. Companies and trusts. Where a company, trust or other non-natural person is an Owner, that company, trust or non-natural person must nominate a natural person {being a Committee Member, officer, trustee or equivalent of that non-natural person) to be the Member for and on behalf of that non-natural person.

5. Categories of membership. The Association may, at any time, specify categories of membership (including between Residential Members and Commercial Members) to recognise any category of usage that may be appropriate.

 

Principal Member

 

1. Principal Member. Until Kensington Park is completed, the Developer will be the Principal Member, regardless of whether the Developer is at any time a Member. The purpose of the Principal Member is to ensure that the Developer can develop Kensington Park as a premium development. The Principal Member will have only the rights and obligations specified in this

2. Limited rights. Constitution, and will have no other rights or obligations as a Member. No reference in this Constitution to a Member will be taken as including a reference to the Principal Member.

3. The resignation of the Principal Member. At the end of the Development  Period,  the Developer will be deemed to have resigned as Principal Member and, thereafter, there will be no Principal Member.

 

Obligations of Members

 

1. Compliance with Constitution and Bylaws. Each Member agrees to promptly and fully comply with the terms of this Constitution, the Bylaws and any covenants given in favour of the Association by such Member (whether by a separate deed of covenant or as noted against each Owner's Title). No amendment to this Constitution will be made which results in there being any conflict between the provisions of this Constitution (including any rule or Bylaw) and the provisions of any such covenant.

2. Sale of a Property. Where a Member sells (the "Seller") a Property:

   • The Seller will, notwithstanding any other provision in this Constitution, remain liable for sums owed to the Association by that Seller including unpaid levies (annual, special or otherwise) and the Transfer Levy.

   • Without limitation, the Seller will continue to be liable as a primary and principal debtor for all indebtedness of the purchaser of the Property (the "Purchaser") to the Association until such time as;

     • The transfer of the certificate of title for that Property to the Purchaser is registered at the Land Transfer Office; and

     • The deed of covenant, specified in rule 7.1.2 is received by the Association; and

     • The Seller has complied with its obligations under this rule 9.2.

   • The Seller must obtain the consent of the Association to the transfer of the Seller's property prior to the date of transfer, which the Association will not be obliged to provide unless :

     • the Seller has:

       1. paid all sums owed by it to the Association in full (including all levies, and all fees charged or costs incurred under rule 7.2); and

       2. Provided the Purchaser's particulars and documentation in accordance with rule 7.1.7.

     • The Purchaser has given a written acknowledgement to the Association that it has read and understood this Constitution, all the then current Bylaws and any covenants noted against the Owner's Title.

   • The Seller will not be entitled to any refund of any levies or any other financial contribution paid to the Association.

3. Lease of Property: For the purpose of this rule 9.3, the term "lease" means any change in possession of a Property for consideration including any form of lease, tenancy, licence or assignment and includes providing accommodation to any paying guest, and the term "tenant" means any person taking possession under a lease.

   • No Member will lease the Member's Property for a period shorter than 32 days, and all leases must be through an approved Rental Agency. Where rule 9.3.1 applies, Members must not advertise the Member's Property for lease other than through the Rental Agency(s). This rule 9.3.1 will not apply to a lease to friends or family of the Member, being persons known to the Member who has not been introduced to the Member's Property through any form of marketing, provided that the Member  the Manager.notify

   • Any Property leased through an approved Rental Agency pursuant to this rule will be leased by the Rental Agency on behalf of the Member at the market rent applicable for that type of Property in Kensington Park and otherwise on normal residential letting and commission conditions applicable as between landlord/rental agent and landlord/tenant.

   • Any member landlord is responsible for the compliance of tenants, and guests of tenants, adherence to the Constitution and Bylaws.

4. Assignment or subletting: Any assignment or subletting of the type or in the manner referred to in s227 of the Property Law Act 2007 will be a breach of the provisions of this Constitution.

5. Payment of Rates and Compliance with Obligations: Each Member acknowledges that it is still liable to pay rates and charges levied by the Auckland Council (or their respective successors) and to otherwise comply with all legal obligations in respect of the Member's Property.

6. Agreement to grant access and easements. Each Member agrees to grant the Association:

   • access to; and

   • any easements, encumbrances and/or covenants over or under; that Member's Property reasonably necessary to permit the Association to give effect to this constitution and any Bylaw.

7. Agreement for Association to Maintain Shared  Facility:  Each  Member agrees the Association has the right to determine that the maintenance and upkeep of a Shared Facility will be managed by the Association and maintained as if it was Common Property.

 

Compliance by Occupiers and Invitees

 

1. Application to Occupiers and Invitees. A reference to an act or omission by any Member will include any act or omission by any mortgagee in possession of that Member's Property, the Occupiers of the Member's Property, and any Invitees.

2. Details of Occupiers. A Member must advise the Association of details of the Occupiers of the Member's Property.

3. Compliance with Constitution and Bylaws. Each Member must ensure Occupiers comply with this Constitution and the Bylaws. In any case of persistent default by an Occupier, the Member will on demand by the Association, terminate the Occupier's right to occupy the Property. A copy of this Constitution, the Bylaws and any covenants given in favour of the Association by that Member will be attached to every lease, licence, or other document defining occupancy rights.

 

Members' Assistance to Developer for Common Facilities

 

1. Future Development. The Members acknowledge that development of Kensington Park is ongoing. The Association is required to allow the Developer such access to, and interests  in,  the Common Facilities as are necessary or desirable for the development of Kensington Park to proceed, and to allow the Developer to add, replace, alter or remove structures and services forming part of the Common Facilities, and to procure that its Members amend this Constitution  if such amendment is necessary or desirable for the development to proceed. The Members further acknowledge that the provisions of this rule 11.1 do not limit any other obligations agreed to by a Member or otherwise binding on a Member. The Association and each Member individually agree:

   • To grant and now grants to the Developer access to the Common Facilities and the Member's Property with such vehicles, machinery and tools as the Developer desires for the purpose of proceeding with the development. However, the Developer will:

     • Make good any damage caused by the Developer accessing a Member's Property under the provisions of this rule 11.1;

     • In so doing, will not unreasonably interfere with that Member's quiet enjoyment of that Member's Property.

   • To grant, and now grants, such easements in favour of the Developer, any Member and/or the Association over or under the Member's Property as are required for Kensington Park to proceed or as may be necessary or desirable for development of Kensington Park, that easement to include terms equivalent to those set out in rule 11.1.1.

   • Not to prevent, hinder or obstruct the use by the Developer of the Common Facilities, the addition, replacement, alteration or removal where not required of structures and/or services forming part of the Common Facilities by the Developer, or the granting of any interests in the Common Facilities by the Association to the Developer.

   • Not to oppose, or permit or take part in any opposition to the development of Kensington Park.

   • To support any resolution to amend this Constitution, where the Association is bound by an agreement with the Developer, to procure such amendment.

   • To sign any document or do any other thing reasonably necessary to support any resource consent or other authorisation applied for by or on behalf of the Developer in respect of Kensington Park.

   • To permit the Association to temporarily close the Common Facilities as may be required for the development to proceed or as may be necessary or desirable for the development of Kensington Park.

2. Encumbrance. The Encumbrance must be noted against each Owner's Title in favour of the Association. The Association must not, except by Special Resolution and with the prior written consent of the Principal Member (if there is one), agree to any alteration of the terms of the covenants as first noted against each such Owner's Title.

 

Use of Common Facilities by Members, Occupiers and Invitees

 

1. Use of Common Facilities. Subject to this Constitution and the Bylaws relating to the use of the Common Facilities, and subject to rule 12.4, each Member and Occupier will be entitled to use the Common Facilities for the proper purposes for which they were designed.

2. Use by Invitees. Limitations on the number of Invitees per Property exist for the use of the Common Facilities. Bylaws and facility-specific rules govern their use.

3. Designated Use of Common Facilities. The Association may  from  time to time determine that:

   • Some or all of the Common Facilities ("Designated Facilities") are to be available for the use by one or more of the Members ("Designated Members") and by Occupiers of those Designated Member Properties and their Invitees, where such Properties are located within one or more discrete areas within Kensington Park and have common interests by reason of their proximity, use, size and/or demand on the Common Facilities; and

   • Other Members ("Non-Designated Members") and their Occupiers and Invitees are not entitled to use those Designated Facilities, and in those circumstances, Designated Facilities will be available for use only by Designated Members and their Occupiers and Invitees.

4. User Charges for Use. The Association will be entitled to set a user fee or charge for persons who wish to use any of the Common Facilities. The Manager will collect or arrange for the collection of the user fees and charges on behalf of the Association and these will be paid into the Association's bank account and will form part of its general assets provided that the Developer, Principal Member and Manager, will be entitled to use the Common Facilities at any time and invite any number of guests to view or use the Common Facilities and will not be required to pay any user fees and charges.

5. Restrictions and Reservations. The Association will be entitled to refuse any person (including a Member) access to the Common Facilities if in its sole discretion it considers that:

   • the Common Facilities are at or near full capacity;

   • to do so is in the interests of safety; or

   • admittance of any further persons would interfere with the use and enjoyment of the Common Facilities by Members and Occupiers using the Common Facilities at that time.

6. No warranty as to capacity. The Association makes no warranty as to the availability and capacity of the Common Facilities or their suitability for use as recreational facilities.

7. Ownership of the Common Facilities. From the date that the ownership of any of the  Common Facilities is transferred to the Association, the Developer will not be responsible for the upkeep, maintenance or improvement of the Common Facilities nor will it be required to provide any further facilities, equipment, services, fixtures, fittings or chattels for the Common Facilities.

8. No acceptance of the transfer of common facilities to the Association will be automatically given if the facility fails to meet common building regulations, standards, and is fit for the purpose intended.

 

Breach of Obligations

 

1. default of an Occupier. In the event of persistent default by an Occupier of a Member's Property of this Constitution or the Bylaws, the Member will, on demand by the Association and at the Member's cost, and where legally possible, terminate the Occupier's rights to use and occupy the Member's Property.The persistent

2. Principal Member may take action. Notwithstanding any other rule in this Constitution, the Principal Member is irrevocably authorised to, at any time and in its sole discretion, on behalf and in the name of the Association, take action, including court or tribunal proceedings, against any Defaulting Member to enforce or require remedy of a breach by the Defaulting Member of this Constitution. The Principal Member will not be required to obtain the prior consent of the Association to any such action, proceeding or claim but will upon request inform the Association about any action, proceeding or claim and the Association will give its full co-operation to the Principal Member, including the prompt reimbursement of the Principal Member's costs (including solicitor/own client costs) of any such action, proceeding or claim.

3. Enforcement of covenants. Without prejudice to rules 13.1.1 to 13.1.5, each Member acknowledges that there are, or are likely to be, covenants and/or encumbrances registered over the Owner's Title in favour of the Association. In the event of the Defaulting Member's breach of the Constitution and/or any Bylaw, the Association may:

   • take action to enforce the terms of the relevant covenants;

   • take action to enforce the terms of any encumbrance;

   • take any other action at law or in equity that may be available to the Association for the enforcement of this Constitution.

4. Breach of obligations. Upon any breach of this Constitution or any Bylaw by a Member ("Defaulting Member"):

   • Where damage has been caused to the Common Facilities or any other Member's Property, the Defaulting Member will immediately make good such damage or, at the option of the Association or other Member, as the case may be, reimburse the Association/Member for the costs of such making good;

   • If the breach continues for three (3) Working Days after notice is given by the Association or the Manager to the Defaulting Member to remedy the breach, the Association/Manager may do anything, including paying money, necessary to remedy the breach;

   • All money paid and expenses incurred by the Association or Manager (including any legal costs) in remedying, or attempting to remedy, a breach of this Constitution or any Bylaw by a Defaulting Member, or incurred in the exercise, or attempted exercise, or enforcement or attempted enforcement of any power, right or remedy of the Association in respect of such breach, will be a debt due from the Defaulting Member to the Association;

   • If any money payable, by a Defaulting Member to the Association or the Manager, is in arrears and unpaid for five (5) Working Days (whether or not formal demand for payment has been made and without any formal demand being necessary) such money will be payable on demand and will bear interest at the rate of 5% per annum above the Association's banker's overdraft rate (or in the absence of such rate such other benchmark lending rate (as nominated by the Association)) applicable during the continuance of the default computed on a daily basis from the due date until the date of payment in full;

   • After receipt of a default notice under rule 13.1.2, the Defaulting Member will not be entitled to exercise the rights and benefits of membership of the Association (including any right to vote at a general meeting) and will not be entitled to use the Common Facilities (except roads and access ways). This rule will not relieve the Defaulting Member from the obligation to pay all monies due to the Association or the Manager under the terms of this Constitution.