71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 3532
B-Engrossed
House Bill 3912
Ordered by the Senate June 18
Including House Amendments dated May 16 and Senate Amendments
dated June 18
Sponsored by Representatives WILLIAMS, MERKLEY (at the request of
Condominium Working Group)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
Modifies provisions relating to organized communities.
A BILL FOR AN ACT
Relating to organized communities; creating new provisions; and
amending ORS 94.550, 94.565, 94.570, 94.580, 94.590, 94.595,
94.616, 94.625, 94.630, 94.635, 94.640, 94.647, 94.650, 94.662,
94.667, 94.670, 94.673, 94.704, 94.719, 100.005, 100.020,
100.105, 100.110, 100.115, 100.120, 100.125, 100.135, 100.150,
100.155, 100.175, 100.185, 100.210, 100.250, 100.260, 100.275,
100.405, 100.410, 100.415, 100.417, 100.420, 100.425, 100.445,
100.470, 100.480, 100.490, 100.520, 100.525, 100.530, 100.550,
100.555, 100.600, 100.640, 100.655, 100.740 and 100.785.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + Sections 2 to 4 of this 2001 Act are added to
and made a part of ORS 94.550 to 94.783. + }
SECTION 2. { + (1) Unless the declaration provides otherwise,
each lot shall be entitled to one vote.
(2) Unless the declaration or bylaws provide otherwise:
(a) An executor, administrator, guardian or trustee may vote,
in person or by proxy, at a meeting of the association with
respect to a lot owned or held in a fiduciary capacity if the
fiduciary satisfies the secretary of the board of directors that
the person is the executor, administrator, guardian or trustee
holding the lot.
(b) When a lot is owned by two or more persons jointly,
according to the records of the association:
(A) Except as provided in this paragraph, the vote or proxy of
the lot may be exercised by a co-owner in the absence of protest
by another co-owner. If the co-owners cannot agree upon the vote,
the vote of the lot shall be disregarded completely in
determining the proportion of votes given with respect to such
matter.
(B) A valid court order may establish the right of co-owners'
authority to vote. + }
SECTION 3. { + (1)(a) A Class I or Class II planned community
created before the effective date of this 2001 Act that is not
subject to ORS 94.550 to 94.783 is subject to this section and
ORS 94.550, 94.590, 94.630 (1), 94.640, 94.645, 94.647, 94.650,
94.655, 94.660, 94.662, 94.665, 94.670, 94.675, 94.680, 94.690,
94.695, 94.704, 94.709, 94.712, 94.716, 94.719, 94.723, 94.733,
94.770, 94.775, 94.777 and 94.780 and section 4 of this 2001 Act
to the extent that those statutes are consistent with any
governing documents. If the governing documents do not provide
for the formation of an association, the requirements of this
subsection are not effective until the formation of an
association in accordance with paragraph (b) of this subsection.
If a provision of the governing documents is inconsistent with
this subsection, the owners may amend the governing documents
using the procedures in this subsection:
(A) In accordance with the procedures for the adoption of
amendments in the governing documents and subject to any
limitations in the governing documents, the owners may amend the
inconsistent provisions of the governing documents to conform to
the extent feasible with this section and ORS 94.550, 94.590,
94.630 (1), 94.640, 94.645, 94.647, 94.650, 94.655, 94.660,
94.662, 94.665, 94.670, 94.675, 94.680, 94.690, 94.695, 94.704,
94.709, 94.712, 94.716, 94.719, 94.723, 94.733, 94.770, 94.775,
94.777 and 94.780 and section 4 of this 2001 Act. Nothing in this
paragraph requires the owners to amend a declaration or bylaws to
include the information required by ORS 94.580 or 94.635.
(B) If there are no procedures for amendment in the governing
documents:
(i) For an amendment to a recorded governing document other
than bylaws, the owners may amend the inconsistent provisions of
the document to conform to this section and ORS 94.550, 94.590,
94.630 (1), 94.640, 94.645, 94.647, 94.650, 94.655, 94.660,
94.662, 94.665, 94.670, 94.675, 94.680, 94.690, 94.695, 94.704,
94.709, 94.712, 94.716, 94.719, 94.723, 94.733, 94.770, 94.775,
94.777 and 94.780 and section 4 of this 2001 Act by a vote of at
least 75 percent of the owners in the planned community.
(ii) For an amendment to the bylaws, the owners may amend the
inconsistent provisions of the bylaws to conform to this section
and ORS 94.550, 94.590, 94.630 (1), 94.640, 94.645, 94.647,
94.650, 94.655, 94.660, 94.662, 94.665, 94.670, 94.675, 94.680,
94.690, 94.695, 94.704, 94.709, 94.712, 94.716, 94.719, 94.723,
94.733, 94.770, 94.775, 94.777 and 94.780 and section 4 of this
2001 Act by a vote of at least a majority of the owners in the
planned community.
(iii) The amendment may be adopted at a meeting held in
accordance with the governing documents or by another procedure
permitted by the governing documents following the procedures
prescribed in ORS 94.647, 94.650 or 94.660.
(iv) An amendment to a recorded declaration shall be executed,
certified and recorded as provided in ORS 94.590 (2) and (3) and
shall be subject to ORS 94.590 (5). An amendment to the bylaws
and any other governing document shall be executed and certified
as provided in ORS 94.590 (3) and shall be recorded in the office
of the recording officer of every county in which the planned
community is located if the bylaws or other governing document to
which the amendment relates were recorded.
(C) An amendment adopted pursuant to this paragraph shall
include:
(i) A reference to the recording index numbers and date of
recording of the declaration or other governing document, if
recorded, to which the amendment relates; and
(ii) A statement that the amendment is adopted pursuant to the
applicable subparagraph of this paragraph.
(b)(A) If the governing documents do not provide for the
formation of an association of owners, at least 10 percent of the
owners in the planned community or any governing entity may
initiate the formation of an association as provided in this
paragraph. The owners or the governing entity initiating the
association formation shall call an organizational meeting for
the purpose of voting whether to form an association described in
ORS 94.625. The notice of the meeting shall:
(i) Name the initiating owners or governing entity;
(ii) State that the organizational meeting is for the purpose
of voting whether to form an association in accordance with the
proposed articles of incorporation;
(iii) State that if the owners vote to form an association, the
owners may elect the initial board of directors provided for in
the articles of incorporation and may adopt the initial bylaws;
(iv) State that to form an association requires an affirmative
vote of at least a majority of the owners in the planned
community, or, if a larger percentage is specified in the
governing documents, the larger percentage;
(v) State that to adopt articles of incorporation, to elect the
initial board of directors pursuant to the articles of
incorporation or to adopt the initial bylaws requires an
affirmative vote of at least a majority of the owners present;
(vi) State that if the initial board of directors is not
elected, an interim board of directors shall be elected pursuant
to bylaws adopted as provided in subparagraph (C) of this
paragraph;
(vii) State that a copy of the proposed articles of
incorporation and bylaws will be available at least five business
days before the meeting and state the method of requesting a
copy; and
(viii) Be delivered in accordance with the declaration and
bylaws. If there is no governing document or the document does
not include applicable provisions, the owners or governing entity
shall follow the procedures prescribed in ORS 94.650 (3).
(B) At least five business days before the organizational
meeting, the initiating owners or governing entity shall cause
articles of incorporation and bylaws to be drafted. The bylaws
shall include, to the extent applicable, the information required
by ORS 94.635.
(C) At the organizational meeting:
(i) Representatives of the initiating owners or governing
entity shall, to the extent not inconsistent with the governing
documents, conduct the meeting according to Robert's Rules of
Order as provided in section 4 of this 2001 Act.
(ii) The initiating owners or governing entity shall make
available copies of the proposed articles of incorporation and
the proposed bylaws.
(iii) The affirmative vote of at least a majority of the owners
of a planned community, or, if a larger percentage is specified
in the governing documents, the larger percentage, is required to
form an association under this paragraph.
(iv) If the owners vote to form an association, the owners
shall adopt articles of incorporation and may elect the initial
board of directors as provided in the articles of incorporation,
adopt bylaws and conduct any other authorized business by an
affirmative vote of at least a majority of the owners present. If
the owners do not elect the initial board of directors, owners
shall elect an interim board of directors by an affirmative vote
of at least a majority of the owners present to serve until the
initial board of directors is elected.
(D) Not later than 10 business days after the organizational
meeting, the board of directors shall:
(i) Cause the articles of incorporation to be filed with the
Secretary of State under ORS chapter 65;
(ii) Cause the notice of planned community described in
subsection (4) of this section to be prepared, executed and
recorded in accordance with subsection (4) of this section.
(iii) Provide a copy of the notice of planned community to each
owner, together with a copy of the adopted articles of
incorporation and bylaws, if any, or a statement of the procedure
and method for adoption of bylaws described in subparagraph (C)
of this paragraph. The copies and any statement shall be
delivered to each lot, mailed to the mailing address of each lot
or mailed to the mailing addresses designated by the owners in
writing; and
(iv) Cause a statement of association information to be
prepared, executed and recorded in accordance with ORS 94.667.
(E) If the owners vote to form an association, all costs
incurred under this paragraph, including but not limited to the
preparation and filing of the articles of incorporation, drafting
of bylaws, preparation of notice of meeting and the drafting,
delivery and recording of all notices and statements shall be a
common expense of the owners and shall be allocated as provided
in the appropriate governing document or any amendment thereto.
(2)(a) The owners of lots in a Class I or Class II planned
community that are subject to the provisions of ORS chapter 94
specified in subsection (1) of this section may elect to be
subject to any other provisions of ORS 94.550 to 94.783 upon
compliance with the procedures prescribed in subsection (1) of
this section.
(b) If the owners of lots in a Class I or Class II planned
community elect to be subject to additional provisions of ORS
94.550 to 94.783, unless the notice of planned community
otherwise required or permitted under subsection (4) of this
section includes a statement of the election pursuant to this
paragraph, the board of directors of the association shall cause
the notice of planned community described in subsection (4) of
this section to be prepared, executed and recorded in accordance
with subsection (4) of this section.
(3)(a) The owners of lots in a Class III planned community
created before the effective date of this 2001 Act may elect to
be subject to provisions of ORS 94.550 to 94.783 upon compliance
with the applicable procedures in subsection (1) of this section.
(b) If the owners of lots in a Class III planned community
elect to be subject to provisions of ORS 94.550 to 94.783, the
board of directors of the association shall cause the notice of
planned community described in subsection (4) of this section to
be prepared, executed and recorded in accordance with subsection
(4) of this section.
(4) The notice of planned community required or permitted by
this section shall be:
(a) Titled 'Notice of Planned Community' under this section;
(b) Executed by the president and secretary of the association;
and
(c) Recorded in the office of the recording officer of every
county in which the property is located.
(5) The notice of planned community shall include:
(a) The name of the planned community and association as
identified in the recorded declaration, conditions, covenants and
restrictions or other governing document and, if different, the
current name of the association;
(b) A list of the properties, described as required for
recordation in ORS 93.600, within the jurisdiction of the
association;
(c) Information identifying the recorded declaration,
conditions, covenants and restrictions or other governing
documents and a reference to the recording index numbers and date
of recording of the governing documents;
(d) A statement that the property described in accordance with
paragraph (b) of this subsection is subject to specific
provisions of the Planned Community Act;
(e) A reference to the specific provisions of the Planned
Community Act that apply to the subject property and a reference
to the subsection of this section under which the application is
made; and
(f) If an association is formed under subsection (1)(b)(A) of
this section, a statement to that effect.
(6) An amended statement shall include a reference to the
recording index numbers and the date of recording of prior
statements.
(7) The county clerk may charge a fee for recording a statement
under this section according to the provisions of ORS 205.320
(4).
(8) Title to a unit, lot or common property in a Class I or
Class II planned community created before the effective date of
this 2001 Act may not be rendered unmarketable or otherwise
affected by a failure of the planned community to be in
compliance with a requirement of this section.
(9) As used in this section:
(a) 'Governing document' means an instrument or plat relating
to common ownership or common maintenance of a portion of a
planned community and that is binding upon lots within the
planned community.
(b) 'Governing entity' means an incorporated or unincorporated
association, committee, person or any other entity that has
authority, under a governing document, to maintain commonly
maintained property, impose assessments on lots or to act on
behalf of lot owners within the planned community on matters of
common concern.
(c) 'Recorded declaration' means an instrument recorded with
the county recording officer of the county in which the planned
community is located that contains conditions, covenants and
restrictions binding lots in the planned community or imposes
servitudes upon the real property. + }
SECTION 4. { + Unless other rules of order are required by the
declaration or bylaws or by a resolution of the association or
its board of directors:
(1) Meetings of the association and the board of directors
shall be conducted according to the latest edition of Robert's
Rules of Order published by the Robert's Rules Association.
(2) A decision of the association or the board of directors may
not be challenged because the appropriate rules of order were not
used unless a person entitled to be heard was denied the right to
be heard and raised an objection at the meeting in which the
right to be heard was denied.
(3) A decision of the association and the board of directors is
deemed valid without regard to procedural errors related to the
rules of order one year after the decision is made unless the
error appears on the face of a written instrument memorializing
the decision. + }
SECTION 5. ORS 94.550 is amended to read:
94.550. As used in ORS 94.550 to 94.783:
(1) 'Assessment' means any charge imposed or levied by a
homeowners association on or against an owner or lot pursuant to
the provisions of the declaration or the bylaws of the planned
community or provisions of ORS 94.550 to 94.783.
(2) 'Blanket encumbrance' means a trust deed or mortgage or any
other lien or encumbrance, mechanic's lien or otherwise, securing
or evidencing the payment of money and affecting more than one
lot in a planned community, or an agreement affecting more than
one lot by which the developer holds such planned community under
an option, contract to sell or trust agreement.
{ + (3) 'Class I planned community' means a planned community
as defined in ORS 94.550 that:
(a) Contains at least 13 lots or in which the declarant has
reserved the right to increase the total number of lots beyond
12; and
(b) Has an initial estimated annual assessment, including an
amount required for reserves under ORS 94.595, exceeding $10,000
for all lots or $100 per lot, whichever is greater, based on:
(A) For a planned community created on or after the effective
date of this 2001 Act, the initial estimated annual assessment,
including a constructive assessment based on a subsidy of the
association through a contribution of funds, goods or services by
the declarant; or
(B) For a planned community created before the effective date
of this 2001 Act, a reasonable estimate of the cost of fulfilling
existing obligations imposed by the declaration and bylaws.
(4) 'Class II planned community' means a planned community as
defined in ORS 94.550 that:
(a) Is not a Class I planned community;
(b) Contains at least five lots; and
(c) Has an estimated annual assessment exceeding $1,000 for all
lots based on:
(A) For a planned community created on or after the effective
date of this 2001 Act, the initial estimated annual assessment,
including a constructive assessment based on a subsidy of the
association through a contribution of funds, goods or services by
the declarant; or
(B) For a planned community created before the effective date
of this 2001 Act, a reasonable estimate of the cost of fulfilling
existing obligations imposed by the declaration and bylaws.
(5) 'Class III planned community' means a planned community as
defined in ORS 94.550 that is not a Class I or II planned
community. + }
{ - (3) - } { + (6) + } 'Common expenses' means
expenditures made by or financial liabilities incurred by the
homeowners association and includes any allocations to the
reserve account under ORS 94.595.
{ - (4) - } { + (7) + } 'Common property' means any real
property or interest in real property within a planned community
which is owned { + , held + } or leased by the homeowners
association or owned as tenants in common by the lot owners, or
designated in the declaration for transfer to the association.
{ - ' Common property ' does not include any lot designated on
the plat or in the declaration of a planned community for
ownership by a person other than the homeowners association. - }
{ - (5) - } { + (8) + } 'Condominium' means property
submitted to the provisions of ORS chapter 100.
{ - (6) - } { + (9) + } 'Declarant' means any person who
creates a planned community under ORS 94.550 to 94.785.
{ - (7) - } { + (10) + } 'Declarant control' means any
special declarant right relating to administrative control of a
homeowners association, including but not limited to:
(a) The right of the declarant or person designated by the
declarant to appoint or remove an officer or a member of the
board of directors;
(b) Any weighted vote or special voting right granted to a
declarant or to units owned by the declarant so that the
declarant will hold a majority of the voting rights in the
association by virtue of such weighted vote or special voting
right; and
(c) The right of the declarant to exercise powers and
responsibilities otherwise assigned by the declaration or bylaws
or by the provisions of ORS 94.550 to 94.783 to the association,
officers of the association or board of directors of the
association.
{ - (8) - } { + (11) + } 'Declaration' means the instrument
described in ORS 94.580 which establishes a planned community,
and any amendments to the instrument.
{ - (9) - } { + (12) + } 'Homeowners association' or
'association ' means the organization of owners of lots in a
planned community, created under ORS 94.625 { + , required by a
governing document or formed under section 3 of this 2001
Act + }.
{ + (13) 'Majority' or 'majority of votes' or 'majority of
owners' means more than 50 percent of the votes in the planned
community. + }
{ - (10) - } { + (14) + } 'Mortgagee' means any person who
is:
(a) A mortgagee under a mortgage;
(b) A beneficiary under a trust deed; or
(c) The vendor under a land sale contract.
{ - (11) - } { + (15) + } 'Owner' means the owner of any
lot in a planned community, unless otherwise specified, but does
not include a person holding only a security interest in a lot.
{ + (16) 'Percent of owners' or 'percentage of owners' means
the owners representing the specified voting rights as determined
under section 2 of this 2001 Act. + }
{ - (12) - } { + (17) + } 'Planned community' means any
subdivision under ORS 92.010 to 92.190 which results in a pattern
of ownership of real property and all the buildings, improvements
and rights located on or belonging to the real property, in which
the owners collectively are responsible for the maintenance,
operation, insurance { - and property taxes - } { + or other
expenses + } relating to any
{ - common - } property { - of - } { + within + } the
planned community { + , including common property, if any, + } or
for the exterior maintenance of any property that is individually
owned. { + Planned Community does not mean:
(a) A condominium under ORS chapter 100;
(b) A planned community that is exclusively commercial or
industrial; or
(c) A timeshare plan under ORS 94.803 to 94.945. + }
{ - (13) - } { + (18) + } 'Purchaser' means any person
other than a declarant who, by means of a voluntary transfer,
acquires a legal or equitable interest in a lot, other than as
security for an obligation.
{ - (14) - } { + (19) + } 'Purchaser for resale' means any
person who purchases from the declarant more than two lots for
the purpose of resale whether or not the purchaser for resale
makes improvements to the lots before reselling them.
{ - (15) - } { + (20) + } 'Special declarant rights' means
any rights, in addition to the rights of the declarant as a lot
owner, reserved for the benefit of the declarant under the
declaration or ORS 94.550 to 94.783, including but not limited
to:
(a) Constructing or completing construction of improvements in
the planned community which are described in the declaration;
(b) Expanding the planned community or withdrawing property
from the planned community under ORS 94.580 (3) and (4);
(c) Converting lots into common property;
(d) Making the planned community subject to a master
association under ORS 94.695; or
(e) Exercising any right of declarant control reserved under
ORS 94.600.
{ - (16) - } { + (21) + } 'Successor declarant' means the
transferee of any special declarant right.
{ - (17) - } { + (22) + } 'Turn over' means the act of
turning over administrative responsibility pursuant to ORS 94.609
and 94.616.
{ - (18) - } { + (23) + } 'Unit' means a building or
portion of a building located upon a lot in a planned community
and designated for separate occupancy or ownership, but does not
include any building or portion of a building located on common
property.
{ - (19) - } { + (24) + } 'Votes' means the votes allocated
to lots in the declaration under ORS 94.580 (2) { - (f) - }
{ + (h) + }.
SECTION 6. ORS 94.565 is amended to read:
94.565. (1) Except as provided in ORS 94.570, { - no - }
{ + a + } person
{ - shall - } { + may not + } create a planned community in
this state except as provided in ORS 94.550 to 94.783.
(2) { - No - } { + A + } person { - shall - } { + may
not + } convey any lot or unit in a planned community until the
{ + planned community is created by the recording of the + }
declaration for the planned community { - is recorded - } with
the county recording officer of each county in which the planned
community is located.
SECTION 7. ORS 94.570 is amended to read:
94.570. (1) ORS 94.550 to 94.783 { - do not - } apply to
{ - any person establishing: - } { + a planned community
created before the effective date of this 2001 Act and to a Class
I planned community created on or after the effective date of
this 2001 Act. + }
{ - (a) A planned community that contains 12 or fewer lots,
if the declarant has reserved no right to increase the total
number of lots in the planned community beyond 12; - }
{ - (b) A condominium under ORS chapter 100; - }
{ - (c) A planned community that is exclusively commercial or
industrial, or commercial and industrial; - }
{ - (d) A de minimis planned community described in
subsection (2) of this section; or - }
{ - (e) A timeshare plan under ORS 94.803 and 94.807 to
94.945. - }
{ - (2) A de minimis planned community is one for which the
estimated annual assessment against all lots in the planned
community does not exceed $1,000 total or $100 per lot, whichever
is greater. - }
{ + (2) ORS 94.550 to 94.783, except for ORS 94.595 and
94.604, apply to a Class II planned community created on or after
the effective date of this 2001 Act. + }
(3) Notwithstanding { - subsection (1)(a), (c) or (d) of this
section - } { + any other provision of ORS 94.550 to
94.783 + }, ORS 94.550 to 94.783 apply to a { + Class III + }
planned community { + or a planned community described in ORS
94.550 (17)(b) created on or after the effective date of this
2001 Act + } if the { - declarant so provides in the - }
declaration of the planned community { + so provides + }.
(4) Nothing in { - this section - } { + ORS 94.550 to
94.783 + } prohibits the establishment of a condominium subject
to ORS chapter 100 or a timeshare plan subject to ORS 94.803 to
94.945 within a planned community.
SECTION 8. ORS 94.580 is amended to read:
94.580. (1) A declarant shall record { + , in accordance with
ORS 94.565, + } the declaration for a planned community in the
office of the recording officer of each county in which the
planned community is located.
(2) The declaration shall include:
(a) The name { + and classification + } of the planned
community;
{ - (b) The name of every city and county in which all or a
portion of the real property in the planned community is
located; - }
{ + (b) The name of the association and the type of entity
formed in accordance with ORS 94.625;
(c) A statement that the planned community is subject to ORS
94.550 to 94.783;
(d) A statement that the bylaws adopted under ORS 94.625 must
be recorded; + }
{ - (c) - } { + (e) + } { - The - } { + A + } legal
description { + , as required under ORS 93.600, + } of the real
property included in the planned community;
{ - (d) - } { + (f) + } { - The - } { + A + } legal
description { + , as required under ORS 93.600, + } of any real
property included in the planned community which is or must
become a common property;
{ - (e) - } { + (g) + } A description of any special
declarant rights other than the rights described under
subsections (3) and (4) of this section;
{ - (f) - } { + (h) + }A provision for allocating votes to
each lot { + in accordance with section 2 of this 2001 Act + };
{ - (g) - } { + (i) + } A method of determining the
liability of each lot for common expenses and the right of each
lot to any common profits of the association;
{ - (h) - } { + (j) If a Class I planned community, + }
provisions for establishing a reserve account and for the
preparation, review and update of the reserve study as required
by ORS 94.595;
{ - (i) - } { + (k) + } Any restrictions on the alienation
of lots. Any such restriction created by any document other than
the declaration may be incorporated by reference to the official
records of the county where the property is located;
{ - (j) - } { + (L) + } A statement of the use, residential
or otherwise, for which each lot is intended;
{ - (k) - } { + (m) + } A statement as to whether or not
the association pursuant to ORS 94.665 may sell, convey or
subject to a security interest any portion of the common property
and any limitation on such authority;
{ - (L) - } { + (n) + } A statement of any restriction on
the use, maintenance or occupancy of lots or units;
{ - (m) - } { + (o) The method of amending the declaration
and + } a statement of the percentage of votes required to
approve an amendment of the declaration in accordance with ORS
94.590;
{ - (n) - } { + (p) + } A description of any contemplated
improvements which the declarant agrees to build, or a statement
that the declarant does not agree to build any improvement or
does not choose to limit declarant's rights to add improvements
not described in the declaration;
{ - (o) - } { + (q) + } A statement of any period of
declarant control or other special declarant rights reserved by
the declarant under ORS 94.600;
{ - (p) - } { + (r) + } A statement of the time at which
the deed to the common property is to be delivered, whether by
date or upon the occurrence of a stipulated event { - if the
deed is not to be delivered at the turnover meeting under ORS
94.616 - } ; and
{ - (q) - } { + (s) + } Any provisions restricting a right
of the association with respect to the common property, or an
individual lot owner with respect to the lot or improvements on
the lot, including but not limited to:
(A) A right to divide the lot or to combine it with other lots;
(B) A right to repair or restore improvements on the lot at the
owner's discretion in the event of damage or destruction;
(C) The requirement for architectural controls, including but
not limited to fencing, landscaping or choice of exterior colors
and materials of structures to be placed on the common property
or on a lot; and
(D) The requirement of review of any plans of any structure to
be placed on the common property or a lot.
(3) If the declarant reserves the right to expand the planned
community by annexing lots or common property or by creating
additional lots { + or common property + } by developing
existing property in the planned community, the declaration shall
contain { + , + } in addition to the provisions required under
subsections (1) and (2) of this section, a general description of
the plan of development { - , - } including:
(a) The procedure by which the planned community will be
expanded;
(b) The maximum number of lots and units to be included in the
planned community or a statement that there is no limitation on
the number of lots or units which the declarant may create or
annex to the planned community;
(c) A general description of the nature and proposed use of any
common property which the declarant agrees to { + create or + }
annex to the planned community or a statement that there is no
limitation on the right of the declarant to { + create or + }
annex common property;
(d) The method of allocation of votes if additional lots are to
be created or annexed to the planned community; and
(e) The formula to be used for reallocating the common expenses
if additional lots are to be created or annexed to the planned
community, and the manner of reapportioning the common expenses
if lots are created or annexed during the fiscal year.
(4) If the declarant may withdraw property from the planned
community, the declaration shall include in addition to the
provisions required under subsections (1), (2) and (3) of this
section:
(a) The procedure by which property will be withdrawn;
(b) A general description of the property which may be
withdrawn from the planned community;
(c) The method of allocation of votes if lots are withdrawn
from the planned community;
(d) The formula to be used for reallocating the common expenses
if the property to be withdrawn has been assessed for common
expenses prior to withdrawal; and
(e) The date after which the right to withdraw property from
the planned community shall expire or a statement that such a
right shall not expire.
SECTION 9. ORS 94.590 is amended to read:
94.590. (1) { + (a) + }The homeowners association may amend
the declaration and the plat only by vote or agreement of the
owners representing { + at least + }75 percent of the total
votes in the planned community or any larger percentage specified
in the declaration.
{ + (b) + } { - In no event shall - } An amendment under
this section { + may not + } create, limit or diminish any
special declarant rights, increase the number of lots or units or
change the boundaries of any lot or any uses to which any lot or
unit is restricted unless the owners of the affected lots
unanimously consent to the amendment. { - The declaration may
provide that a percentage less than 75 percent of the votes of
the planned community is required to amend the declaration for
amendments relating to age restrictions, pet restrictions,
limitations on the number of persons who may occupy units or
limitations on the rental or leasing of units. - }
(2) { + (a) Unless otherwise provided in the declaration, an
amendment to the declaration may be proposed by a majority of the
board of directors or by at least 30 percent of the owners in the
planned community.
(b) + }When the association adopts an amendment to the
declaration, the association shall record the amendment in the
same place as the declaration. An amendment of the declaration is
effective only upon recordation.
(3) { + Notwithstanding a provision in a declaration that
requires amendments to be executed and acknowledged by all owners
approving the amendment, + }amendments to a declaration under
this section shall be executed { - , recorded - } and certified
on behalf of the association by { - any officer of the
homeowners association designated for that purpose or, in the
absence of designation, by the president of the board of
directors of the association - } { + the president and
secretary as being adopted in accordance with the declaration and
the provisions of this section and acknowledged in the manner
provided for acknowledgment of deeds + }.
(4) An amendment to a declaration or plat shall be conclusively
presumed to have been regularly adopted in compliance with all
applicable procedures relating to such amendment unless an action
is brought within one year after the date such amendment was
recorded or the face of the recorded amendment indicates that the
amendment received the approval of fewer votes than required for
such approval. However, nothing in this subsection shall prevent
the further amendment of an amended declaration or plat.
(5) During any period of declarant control, voting on an
amendment under subsection (1) of this section shall be without
regard to any weighted vote or special voting right reserved by
the declarant except as otherwise provided under ORS 94.585.
Nothing in this subsection is intended to prohibit a declarant
from reserving the right to require the declarant's consent to an
amendment during the period reserved in the declaration for
declarant control.
SECTION 10. ORS 94.595 is amended to read:
94.595. (1) The declarant shall { + :
(a) Conduct a reserve study described in subsection (3) of this
section; and
(b) + } Establish a reserve account for replacement of all
items of common property which will normally require replacement,
in whole or in part, in more than three and less than 30 years,
for exterior painting if the common property includes exterior
painted surfaces { + , for other items, whether or not involving
common property, if the association has responsibility to
maintain the items + } { - , - } and for { - such - } other
items { - as may be - } required by the declaration or bylaws.
The reserve account need not include { + reserves for those
items:
(A) + } { - Those items - } That could reasonably be funded
from operating assessments { + ; or
(B) For which one or more owners are responsible for
maintenance and replacement under the provisions of the
declaration or bylaws + }.
(2) { + (a) + } A reserve account established under this
section shall be funded by assessments against the individual
lots for maintenance of items for which the reserves are
established.
{ + (b) + } The assessments under this subsection begin
accruing from the date the first lot assessed is conveyed.
{ - The declarant may defer payment of the accrued assessment
for a lot under this subsection until the date the lot is
conveyed. The books and records of the homeowners association
shall reflect the amount owing from the declarant for all reserve
assessments. - }
{ - (3) The amounts assessed shall take into account the
estimated remaining life of the items for which the reserve is
created and the current replacement cost of those items. - }
{ - (4) - } { + (3)(a) + } The reserve account shall be
established in the name of the homeowners association. The
association is responsible for administering the account and for
making periodic payments into { + the account. + } { - it. The
association shall adjust the amount of the payments at least
annually to reflect changes in current replacement costs over
time. - }
{ + (b) The reserve portion of the initial assessment
determined by the declarant shall be based on:
(A) The reserve study described in paragraph (c) of this
subsection; or
(B) Other sources of reliable information.
(c) + } The board of directors of the association annually
shall conduct a reserve study { - , - } or review and update an
existing study { - , of the common property components to
determine the reserve account requirements. A reserve account
shall be established for those items of common property all or
part of which will normally require replacement in more than
three and less than 30 years, for exterior painting if the common
property includes exterior painted surfaces, and for the
maintenance, repair or replacement of other items as may be
required under the declaration or bylaws or that the board of
directors, in its discretion, may deem appropriate. The reserve
account need not include items that could reasonably be funded
from operating assessments - } { + to determine the reserve
account requirements and may:
(A) Adjust the amount of payments as indicated by the study or
update; and
(B) Provide for other reserve items that the board of
directors, in its discretion, may deem appropriate + }.
{ + (d) + } The reserve study shall include:
{ - (a) - } { + (A) + } Identification of all items for
which reserves are required to be established;
{ - (b) - } { + (B) + } The estimated remaining useful life
of each item as of the date of the reserve study;
{ - (c) - } { + (C) + } The estimated cost of maintenance,
repair or replacement of each item at the end of its useful life;
and
{ - (d) - } { + (D) + } A 30-year plan with regular and
adequate contributions, adjusted by estimated inflation and
interest earned on reserves, to meet the maintenance, repair and
replacement schedule.
{ - (5) - } { + (4)(a) + } If the declaration or bylaws
require a reserve account, the reserve study requirements of
subsection { - (4) - } { + (3) + } of this section first
apply to the association of a subdivision that meets the
definition of a planned community under ORS 94.550 and is
recorded prior to October 23, 1999, { - upon receipt of a
written request from an owner or mortgagee of a lot that a
reserve study be conducted. - } { + when:
(A) The board of directors adopts a resolution in compliance
with the bylaws that applies the requirements of subsection (3)
of this section to the association; or
(B) A petition signed by a majority of owners is submitted to
the board of directors mandating that the requirements of
subsection (3) of this section apply to the association.
(b) + } A reserve study { - under this subsection - } shall
be completed within one year of { - the request - } { +
adoption of the resolution or submission of the petition to the
board of directors + }.
{ - (6) - } { + (5)(a) + }The reserve account may be used
only for
{ - maintenance, repair and replacement of common property - }
{ + the purposes + } for which reserves have been established
and is to be kept separate from other funds. { - However, - }
{ + (b) + } After the individual lot owners have assumed
responsibility for administration of the planned community { +
under ORS 94.616 + }, the board of directors may borrow funds
from the reserve account to meet high seasonal demands on the
regular operating funds or to meet { - other temporary - }
{ + unexpected increases in + } expenses. Funds borrowed
{ - to meet temporary expenses - } under this subsection must
be repaid later from { - special - } assessments
{ - or maintenance fees - } { + if the board of directors has
adopted a resolution, which may be an annual continuing
resolution, authorizing the borrowing of funds. Not later than
the adoption of the budget for the following year, the board of
directors shall adopt by resolution a written payment plan
providing for repayment of the borrowed funds within a reasonable
period + }.
{ - (7) - } { + (6) + } Nothing in this section prohibits
prudent investment of reserve account funds subject to any
constraints imposed by the declaration, bylaws or rules of the
association.
{ - (8) - } { + (7) In addition to the authority of the
board of directors under subsection (3)(c) of this section, + }
following the second year after the association has assumed
administrative responsibility for the planned community under ORS
94.616 { - , if owners of lots representing - } { + :
(a) By an affirmative vote of at least + } 75 percent of the
{ - votes - } { + owners + }of the planned community
{ - agree to the action, they may vote to increase, reduce or
eliminate - } { + , the association may elect to reduce or
increase + } future assessments for the { + reserve + }
account { + ; and
(b) The association may, on an annual basis by a unanimous
vote, elect not to fund the reserve account + }.
{ - (9) - } { + (8) + } Assessments paid into the reserve
account are the property of the association and are not
refundable to sellers or owners of lots.
SECTION 11. ORS 94.616 is amended to read:
94.616. (1) At the meeting called under ORS 94.609, the
declarant shall turn over to the homeowners association the
responsibility for the administration of the planned community,
and the association shall accept the administrative
responsibility from the declarant.
(2) The owners shall elect a board of directors in accordance
with the bylaws of the association.
(3) At the meeting, called under ORS 94.609, the declarant
shall deliver to the association:
(a) The original or a photocopy of the recorded declaration and
copies of the bylaws and the articles of incorporation, if any,
of the planned community and any supplements and amendments to
the articles or bylaws;
(b) A deed to the common property in the planned community,
unless otherwise provided in the declaration;
(c) The minute books, including all minutes, and other books
and records of the association and the board of directors;
(d) All rules and regulations adopted by the declarant;
(e) Resignations of officers and members of the board of
directors who are required to resign because of the expiration of
any period of declarant control reserved pursuant to ORS 94.600;
(f) A report on the present financial position of the
association, consisting of a balance sheet and an income and
expense statement for the 12-month period or a period following
the recording of the declaration, whichever period is less;
(g) All funds of the association and control of the funds,
including all bank records;
(h) All tangible personal property that is property of the
association, and an inventory of the property;
(i) Records of all property tax payments for the common
property to be administered by the association;
(j) Copies of any income tax returns filed by the declarant in
the name of the association, and supporting records for the
returns;
(k) All bank signature cards;
(L) The reserve account established in the name of the
association under ORS 94.595;
(m) The reserve study described in ORS 94.595, including all
updates { + and other sources of information that serve as a
basis for calculating reserves in accordance with ORS 94.595 + };
(n) An operating budget for the portion of the planned
community turned over to association administration and a budget
for replacement and maintenance of the common property;
(o) A copy of the following, if available:
(A) The as-built architectural, structural, engineering,
mechanical, electrical and plumbing plans;
(B) The original specifications, indicating all subsequent
material changes;
(C) The plans for underground site service, site grading,
drainage and landscaping together with cable television drawings;
(D) Any other plans and information relevant to future repair
or maintenance of the property; and
(E) A list of the general contractor and the electrical,
heating and plumbing subcontractors responsible for construction
or installation of common property;
(p) Insurance policies;
(q) Copies of any occupancy permits issued for the planned
community;
(r) Any other permits issued by governmental bodies applicable
to the planned community in force or issued within one year
before the date on which the owners assume administrative
responsibility;
(s) A list of any written warranties on the common property
that are in effect and the names of the contractor, subcontractor
or supplier who made the installation for which the warranty is
in effect;
(t) A roster of owners and their addresses and telephone
numbers, if known, as shown on the records of the declarant;
(u) Leases of the common property and any other leases to which
the association is a party;
(v) Employment or service contracts in which the association is
one of the contracting parties or service contracts in which the
association or the owners have an obligation or responsibility,
directly or indirectly, to pay some or all of the fee or charge
of the person performing the service; and
(w) Any other contracts to which the homeowners association is
a party.
(4) In order to facilitate an orderly transition, during the
three-month period following the turnover meeting, the declarant
or an informed representative shall be available to meet with the
board of directors on at least three mutually acceptable dates to
review the documents delivered under subsection (3) of this
section.
{ + (5) If the declarant has complied with this section and
unless the declarant has sufficient voting rights as a lot owner
to control the association, the declarant is not responsible for
the failure of the owners to comply with subsection (1) of this
section and the declarant is relieved from further responsibility
for the administration of the association, except as a lot
owner. + }
SECTION 12. ORS 94.625 is amended to read:
94.625. { + (1) + } Not later than the date on which the first
lot in the planned community is conveyed, the declarant shall
{ - form a corporation or unincorporated association and
shall - } { + :
(a) Organize the association as a nonprofit corporation under
ORS chapter 65;
(b) + } Adopt { + , on behalf of the association, + } the
initial bylaws { + required + } under ORS 94.635 { + to govern
the administration of the planned community + } { - . - } { + ;
and + }
{ + (c) + } { + Record + } the bylaws { - may be
recorded - } in the office of the recording officer in each
county in which the planned community is located.
{ + (2) Unless otherwise provided in the bylaws, amendments
to the bylaws may be proposed by a majority of the board of
directors or by at least 30 percent of the owners of the planned
community.
(3) Subject to subsection (4) of this section, an amendment is
not effective unless the amendment is:
(a) Approved, unless otherwise provided in the bylaws, by a
majority of the votes in a planned community present, in person
or by proxy, at a duly constituted meeting or by ballot vote;
(b) Certified by the president and secretary of the association
as having been adopted in accordance with the bylaws and this
section; and
(c) Recorded in the office of the recording officer if the
bylaws to which the amendment relates were recorded.
(4) If a provision required to be in the declaration under ORS
94.580 is included in the bylaws, the voting requirements for
amending the declaration shall also govern the amendment of the
provision in the bylaws.
(5) + } Failure to comply with { + subsection (1) of + } this
section
{ - shall - } { + does + } not invalidate a conveyance from
the declarant to an owner.
SECTION 13. ORS 94.630 is amended to read:
94.630. (1) { - Except as provided in - } { + Subject
to + } subsection (2) of this section and { + except as
otherwise provided + } in its declaration or bylaws, a homeowners
association may:
(a) Adopt and amend bylaws, rules and regulations for the
planned community;
(b) Adopt and amend budgets for revenues, expenditures and
reserves, and collect assessments from owners for common expenses
and the reserve account established under ORS 94.595;
(c) Hire and terminate managing agents and other employees,
agents and independent contractors;
(d) Defend against any claims, proceedings or actions brought
against it;
(e) { + Subject to subsection (4) of this section, + }
initiate or intervene in litigation or administrative proceedings
in its own name and without joining the individual owners in the
following:
(A) Matters relating to the collection of assessments and the
enforcement of governing documents;
(B) Matters arising out of contracts to which the association
is a party;
(C) Actions seeking equitable or other nonmonetary relief
regarding matters that affect the common interests of the owners,
including but not limited to the abatement of nuisance;
(D) Matters relating to or affecting common property, including
but not limited to actions for damage, destruction, impairment or
loss of use of any common property;
(E) Matters relating to or affecting the lots or interests of
the owners including but not limited to damage, destruction,
impairment or loss of use of a lot or portion thereof, if:
(i) Resulting from a nuisance or a defect in or damage to
common property; or
(ii) Required to facilitate repair to any common property; and
(F) Any other matter to which the association has standing
under law or pursuant to the declaration or bylaws;
(f) Make contracts and incur liabilities;
(g) Regulate the use, maintenance, repair, replacement and
modification of common property;
(h) Cause additional improvements to be made as a part of the
common property;
(i) Acquire, hold, encumber and convey in its own name any
right, title or interest to real or personal property, except
that common property may be conveyed or subjected to a security
interest only pursuant to ORS 94.665;
(j) Grant easements, leases, licenses and concessions through
or over the common property;
(k) Modify, close, remove, eliminate or discontinue the use of
common property, including any improvement or landscaping,
regardless of whether the common property is mentioned in the
declaration, provided that:
(A) Nothing in this paragraph is intended to limit the
authority of the association to seek approval of the
modification, closure, removal, elimination or discontinuance by
the owners; and
(B) Modification, closure, removal, elimination or
discontinuance other than on a temporary basis of any swimming
pool, spa or recreation or community building must be approved by
at least a majority of owners voting on the matter at a meeting
or { + by written + } ballot held in accordance with the
declaration { - or - } { + , + } bylaws { + or ORS
94.647 + };
(L) Impose and receive any payments, fees or charges for the
use, rental or operation of the common property and services
provided to owners;
(m) Adopt rules regarding the termination of utility services
paid for out of assessments of the association and access to and
use of recreational and service facilities available to owners
and, after giving notice and an opportunity to be heard,
terminate the rights of any owners to receive such benefits or
services until the correction of any violation covered by such
rule has occurred;
(n) Impose charges for late payment of assessments and attorney
fees related to the collection of assessments and, after giving
{ + written + } notice and an opportunity to be heard, levy
reasonable fines for violations of the declaration,
bylaws { + , + } { - and - } rules { + and regulations + } of
the association { + if the charge imposed or the fine levied is
based on a schedule contained in the declaration or bylaws, or an
amendment to either that is delivered to each lot, mailed to the
mailing address of each lot or mailed to the mailing addresses
designated in writing by the owners, or based on a resolution of
the association or its board of directors that is delivered to
each lot, mailed to the mailing address of each lot or mailed to
the mailing addresses designated in writing by the owners + };
(o) Impose reasonable charges for the preparation and
recordation of amendments to the declaration;
(p) Provide for the indemnification of its officers and the
board of directors and maintain liability insurance for directors
and officers;
(q) Assign its right to future income, including the right to
receive common expense assessments; and
(r) Exercise any other powers necessary and proper for the
administration and operation of the association.
(2) Notwithstanding subsection (1) of this section, a
declaration may not impose any limitation on the ability of the
association to deal with a declarant that is more restrictive
than the limitations imposed on the ability of the association to
deal with any other person, except during the period of declarant
control under ORS 94.600.
{ + (3) A permit or authorization, or an amendment,
modification, termination or other instrument affecting a permit
or authorization, issued by the board of directors that is
authorized by law, the declaration or bylaws may be recorded in
the deed records of the county in which the planned community is
located. A permit or authorization, or an amendment,
modification, termination or other instrument affecting a permit
or authorization, recorded under this subsection shall:
(a) Be executed by the president and secretary of the
association and acknowledged in the manner provided for
acknowledgement of instruments by the officers;
(b) Include the name of the planned community and a reference
to where the declaration and any applicable supplemental
declarations are recorded;
(c) Identify, by the designations stated or referenced in the
declaration or applicable supplemental declaration, all affected
lots and common property; and
(d) Include other information and signatures if required by
law, the declaration, bylaws or the board of directors.
(4)(a) Subject to paragraph (f) of this subsection, before
initiating litigation or an administrative proceeding in which
the association and an owner have an adversarial relationship,
the party that intends to initiate litigation or an
administrative proceeding shall offer to use any dispute
resolution program available within the county in which the
planned community is located that is in substantial compliance
with the standards and guidelines adopted under ORS 36.175. The
written offer must be hand-delivered or mailed by certified mail,
return receipt requested, to the address, contained in the
records of the association, for the other party.
(b) If the party receiving the offer does not accept the offer
within 10 days after receipt by written notice hand-delivered or
mailed by certified mail, return receipt requested, to the
address, contained in the records of the association, for the
other party, the initiating party may commence the litigation or
the administrative proceeding. The notice of acceptance of the
offer to participate in the program must contain the name,
address and telephone number of the body administering the
dispute resolution program.
(c) If a qualified dispute resolution program exists within the
county in which the planned community is located and an offer to
use the program is not made as required under paragraph (a) of
this subsection, litigation or an administrative proceeding may
be stayed for 30 days upon a motion of the noninitiating party.
If the litigation or administrative action is stayed under this
paragraph, both parties shall participate in the dispute
resolution process.
(d) Unless a stay has been granted under paragraph (c) of this
subsection, if the dispute resolution process is not completed
within 30 days after receipt of the initial offer, the initiating
party may commence litigation or an administrative proceeding
without regard to whether the dispute resolution is completed.
(e) Once made, the decision of the court or administrative body
arising from litigation or an administrative proceeding may not
be set aside on the grounds that an offer to use a dispute
resolution program was not made.
(f) The requirements of this subsection do not apply to
circumstances in which irreparable harm to a party will occur due
to delay or to litigation or an administrative proceeding
initiated to collect assessments, other than assessments
attributable to fines. + }
SECTION 14. ORS 94.635 is amended to read:
94.635. The bylaws of an association adopted under ORS 94.625,
or amended or adopted under ORS 94.630, shall provide for the
following:
(1) The organization of the association of owners in accordance
with ORS 94.625 and 94.630, including when the initial meeting
shall be held and the method of calling that meeting.
(2) { + If a Class I planned community, + } the formation of a
transitional advisory committee in accordance with ORS 94.604.
(3) The turnover meeting required under ORS 94.609, including
the time by which the meeting shall be called, the method of
calling the meeting, the right of an owner under ORS 94.609 (3)
to call the meeting and a statement of the purpose of the
meeting.
(4) { + (a) + } The method of calling the annual meeting and
all other meetings of the owners { + in accordance with ORS
94.650; + } and { - , - }
{ + (b) + } { - In accordance with ORS 94.655, - } The
percentage of votes that shall constitute a quorum { - , if less
than 20 percent - } .
(5) { + (a) + } The election of a board of directors from among
the unit owners { - , - } { + and + } the number of persons
constituting the board { - , - } { + ;
(b) + } The powers and duties of the board { - , - } { + ;
(c) + } Any compensation of the directors { + ; + } and
{ + (d) + } The method of removing directors from office in
accordance with ORS 94.640 { - (5) - } { + (6) + }.
(6) The terms of office of directors.
(7) The method of calling meetings of the board of directors in
accordance with ORS 94.640 { - (7) - } { + (8) + } and a
statement that all meetings of the board of directors shall be
open to owners.
(8) The offices of president, secretary and treasurer and any
other offices of the association, and the method of selecting and
removing officers and filling vacancies in the offices.
(9) The preparation and adoption of a budget in accordance with
ORS 94.645.
(10) { + (a) + } The program for maintenance, upkeep { + , + }
{ - and - } repair { + and replacement + } of the common
property { + ; + } { - and - }
{ + (b) + } The method of payment for the expense of the
program
{ - including - } { + and other expenses of the planned
community; and
(c) + } The method of approving payment vouchers.
(11) The employment of personnel necessary for the { +
administration of the planned community and + } maintenance,
upkeep and repair of the common property.
(12) The manner of collecting { + assessments + } from the
owners
{ - their share of the common expenses - } .
(13) Insurance coverage in accordance with ORS 94.675 and
94.685.
(14) The preparation and distribution of the annual financial
statement required under ORS 94.670.
(15) The method of adopting administrative rules and
regulations governing the details for the operation { + of the
planned community + } and use of the common property.
(16) The method of amending the bylaws { - subject to this
section - } { + in accordance with ORS 94.630 + }. The bylaws
may require no greater than an affirmative majority of votes to
amend any provision of the bylaws.
(17) If additional property is proposed to be annexed pursuant
to ORS 94.580 (3), the method of apportioning common expenses if
new lots are added during { - the course of - } the fiscal
year.
(18) Any other details regarding the planned community that the
declarant or the association consider desirable. However, if a
provision required to be in the declaration under ORS 94.580 is
included in the bylaws, the voting requirements for amending the
declaration shall govern the amendment of that provision of the
bylaws.
SECTION 15. ORS 94.640 is amended to read:
94.640. (1) The board of directors of an association may act on
behalf of the association except as limited by the declaration
and the bylaws. In the performance of their duties, officers and
members of the board of directors shall exercise the care
required of fiduciaries.
(2) Unless otherwise provided in the bylaws, the board of
directors may fill vacancies in its membership for the unexpired
portion of any term.
(3) At least annually, the board of directors of an association
shall review the insurance coverage of the association.
(4) The board of directors of the association annually shall
cause to be filed the necessary income tax returns for the
association.
{ + (5) The board of directors of the association may record
a statement of association information as provided in ORS
94.667. + }
{ - (5) - } { + (6) + } Unless otherwise provided in the
declaration or bylaws, the owners may remove any member of the
board of directors, other than members appointed by the declarant
or persons who are ex officio directors, with or without cause,
by a majority vote of all owners present and entitled to vote at
any meeting of the owners at which a quorum is present. No
removal of a director is effective unless the matter of removal
is an item on the agenda and stated in the notice for the meeting
required under ORS 94.650.
{ - (6) - } { + (7)(a) + } All meetings of the board of
directors of the association shall be open to owners, except that
at the discretion of the board the following matters may be
considered in executive session:
{ - (a) - } { + (A) + } Consultation with legal counsel
concerning the rights and duties of the association regarding
existing or potential litigation, or criminal matters;
{ - (b) - } { + (B) + } Personnel matters, including salary
negotiations and employee discipline; and
{ - (c) - } { + (C) + } The negotiation of contracts with
third parties.
{ + (b) Except in the case of an emergency, the board of
directors of an association shall vote in an open meeting whether
to meet in executive session. If the board of directors votes to
meet in executive session, the presiding officer of the board of
directors shall state the general nature of the action to be
considered and, as precisely as possible, when and under what
circumstances the deliberations can be disclosed to owners.
(c) The meeting and notice requirements in this section may not
be circumvented by chance or social meetings or by any other
means. + }
{ - (7) - } { + (8) + } In a planned community in which the
majority of the lots are the principal residences of the
occupants, meetings shall be called as follows:
(a) For other than emergency meetings, notice of board of
directors' meetings shall be posted at a place or places on the
property at least three days prior to the meeting or notice shall
be provided by a method otherwise reasonably calculated to inform
lot owners of such meetings;
(b) Emergency meetings may be held without notice, if the
reason for the emergency is stated in the minutes of the meeting;
and
(c) Only emergency meetings of the board of directors may be
conducted by telephonic communication.
{ - (8) - } { + (9) + } The board of directors, in the name
of the association, shall maintain a current mailing address of
the association.
SECTION 16. ORS 94.647 is amended to read:
94.647. (1) Unless prohibited or limited by the declaration or
bylaws, any action that may be taken at any annual, regular or
special meeting of the homeowners association may be taken
without a meeting if the association delivers a written ballot to
every association member that is entitled to vote on the matter.
(2) { + (a) + } A written ballot shall set forth each proposed
action and provide an opportunity to vote for or against each
proposed action.
{ + (b) The board of directors must provide owners with at
least 10 days' notice before written ballots are mailed or
otherwise delivered. If, at least three days before written
ballots are scheduled to be mailed or otherwise distributed, at
least 10 percent of the owners petition the board of directors
requesting secrecy procedures, a written ballot must be
accompanied by a secrecy envelope, a return identification
envelope to be signed by the owner and instructions for marking
and returning the ballot. Notwithstanding the applicable
provisions of subsection (3) or (4) of this section, written
ballots that are returned in secrecy envelopes may not be
examined or counted before the deadline for returning ballots has
passed. + }
(3) Matters that may be voted on by written ballot shall be
deemed approved or rejected as follows:
(a) If approval of a proposed action otherwise would require a
meeting at which a certain quorum must be present and at which a
certain percentage of total votes cast is required to authorize
the action, the proposal shall be deemed to be approved when the
date for the return of ballots has passed, a quorum of owners has
voted and the required percentage of approving votes has been
received. Otherwise, the proposal shall be deemed to be rejected;
or
(b) If approval of a proposed action otherwise would require a
meeting at which a specified percentage of owners must authorize
the action, the proposal shall be deemed to be approved when the
percentage of total votes cast in favor of the proposal equals or
exceeds such required percentage. The proposal shall be deemed to
be rejected when the number of votes cast in opposition renders
approval impossible or when both the date for return of ballots
has passed and such required percentage has not been met. Unless
otherwise prohibited by the declaration or bylaws, the votes may
be counted from time to time before the final return date to
determine whether the proposal has passed or failed by the votes
already cast on the date they are counted.
(4) All solicitations for votes by written ballot shall state
the following:
(a) If approval of a proposal by written ballot requires that
the total number of votes cast equal or exceed a certain quorum
requirement, the number of responses needed to meet such quorum
requirement; and
(b) If approval of a proposal by written ballot requires that a
certain percentage of total votes cast approve the proposal, the
required percentage of total votes needed for approval.
(5) All solicitations for votes by written ballot shall specify
the period during which the association shall accept written
ballots for counting, which period shall end on the earliest of
the following dates:
(a) If approval of a proposed action by written ballot requires
that a certain percentage of the owners approve the proposal, the
date on which the association has received a sufficient number of
approving ballots;
(b) If approval of a proposed action by written ballot requires
that a certain percentage of the owners approve the proposal, the
date on which the association has received a sufficient number of
disapproving ballots to render approval impossible; or
(c) In all cases, the date certain on which all ballots must be
returned to be counted.
(6) Except as otherwise provided in the declaration or bylaws,
a written ballot may not be revoked.
SECTION 17. ORS 94.650 is amended to read:
94.650. (1) The homeowners association shall hold at least one
meeting of the owners each calendar year.
(2) { + (a) + } Special meetings of the association may be
called by the president of the board of directors, a majority of
the board of directors or a percentage of owners specified in the
bylaws of the association. However, the bylaws may not require a
percentage greater than 50 percent or less than 10 percent of the
votes of the planned community for the purpose of calling a
meeting.
{ + (b) If the bylaws do not specify a percentage of owners
that may call a special meeting, 30 percent or more of the owners
may call a special meeting, notice of which shall be given as
specified in this section.
(c) Business transacted at a special meeting shall be confined
to the purposes stated in the notice. + }
(3) Not less than 10 or more than 50 days before any meeting
called under this section, the secretary or other officer
specified in the bylaws shall cause notice to be hand delivered
or mailed to the mailing address of each lot or to the mailing
address designated in writing by the owner, and to all mortgagees
that have requested such notice. Mortgagees may designate a
representative to attend a meeting called under this section.
{ + (4) + } The notice { + of a meeting + } shall state the
time and place of the meeting and the items on the agenda,
including the general nature of any proposed amendment to the
declaration or bylaws, any budget changes or any proposal to
remove a director or officer.
SECTION 18. ORS 94.662 is amended to read:
94.662. (1) At least 10 days prior to instituting any
litigation or administrative proceeding to recover damages under
ORS 94.630 (1)(e)(E), the homeowners association shall provide
written notice to each affected owner of the association's intent
to seek damages on behalf of the owner. The notice shall, at a
minimum:
{ + (a) Be mailed to the mailing address of each lot or to
the mailing address designated in writing to the association by
the owner; + }
{ - (a) - } { + (b) + } Inform each owner of the general
nature of the litigation or proceeding;
{ - (b) - } { + (c) + } Describe the specific nature of the
damages to be sought on the owner's behalf;
{ - (c) - } { + (d) + } Set forth the terms under which the
association is willing to seek damages on the owner's behalf,
including any mechanism proposed for the determination and
distribution of any damages recovered;
{ - (d) - } { + (e) + } Inform each owner of the owner's
right not to have the damages sought on the owner's behalf and
specify the procedure for exercising the right; and
{ - (e) - } { + (f) + } Inform the owner that exercising
the owner's right not to have damages sought on the owner's
behalf:
(A) Relieves the association of its duty to reimburse or
indemnify the owner for the damages;
(B) Does not relieve the owner from the owner's obligation to
pay dues or assessments relating to the litigation or proceeding;
(C) Does not impair any easement owned or possessed by the
association; and
(D) Does not interfere with the association's right to make
repairs to common areas.
(2) Within 10 days of mailing the notice described in this
section, any owner may request in writing that the association
not seek damages on the owner's behalf. If an owner makes such a
request, the association shall not make or continue any claim or
action for damages with regard to the objecting owner's lot and
shall be relieved of any duty to reimburse or indemnify the owner
for damages under the litigation or proceeding.
SECTION 19. ORS 94.667 is amended to read:
94.667. (1) As used in this section, 'association' means an
association formed under ORS 94.625, 94.846 or 100.405, or any
other association in which a person holds membership by virtue of
owning or possessing a real estate interest subject to assessment
and lien authority pursuant to a recorded instrument.
(2) The board of directors or managing agent of an association
may record with the county clerk for the county where the subject
property is located a statement of association information. { +
Subject to subsection (3) of this section, + } the statement
shall contain at least the following information:
(a) The name of the association as identified in the recorded
declaration, conditions, covenants and restrictions or other
governing instrument, and the current name of the association, if
different;
(b) The name, address and daytime telephone number of a
managing agent or treasurer of the association or other person
authorized to receive { + :
(A) + } Assessments and fees imposed by the association { + ;
or
(B) Notice of a transfer of property + };
(c) A list of the properties, as described for recordation in
ORS 93.600, subject to assessment by the association;
(d) Information identifying the recorded declaration,
conditions, covenants and restrictions or other governing
instrument, and a reference to where the instruments are
recorded; and
(e) If an amended statement is being recorded, information
identifying prior recorded statements.
{ + (3) The statement may not include information for a
purpose that is not related to the identification of the person
specified in subsection (2)(b) of this section. + }
{ - (3) - } { + (4) + } The county clerk may charge a fee
for recording a statement under this section according to the
provisions of ORS 205.320 (4).
SECTION 20. ORS 94.670 is amended to read:
94.670. (1) A homeowners association shall retain { + within
this state + } the documents, information and records delivered
to the association under ORS 94.616.
(2) All assessments, including declarant subsidies, shall be
deposited in a separate bank account { + , located within this
state, + } in the name of the association. All expenses of the
association shall be paid from the association bank account.
(3) The association shall keep financial records sufficiently
detailed for proper accounting purposes. Within 90 days after the
end of the fiscal year, the board of directors shall distribute
to each owner and, upon written request, any mortgagee of a lot,
a copy of the annual financial statement consisting of a balance
sheet and income and expenses statement for the preceding fiscal
year.
{ + (4)(a) The association shall provide, within 10 business
days of receipt of a written request from an owner, a written
statement that provides:
(A) The amount of assessments due from the owner and unpaid at
the time the request was received, including:
(i) Regular and special assessments;
(ii) Fines and other charges;
(iii) Accrued interest; and
(iv) Late payment charges.
(B) The percentage rate at which interest accrues on
assessments that are not paid when due.
(C) The percentage rate used to calculate the charges for late
payment or the amount of a fixed charge for late payment.
(b) The association is not required to comply with paragraph
(a) of this subsection if the association has commenced
litigation by filing a complaint against the owner and the
litigation is pending when the statement would otherwise be
due. + }
{ - (4) - } { + (5) + } The association shall make the
documents, information and records described in subsections (1)
and (3) of this section and all other records of the association
reasonably available for examination by an owner and any
mortgagee of a lot. Upon the written request of an owner or
mortgagee of a lot, the association shall make available during
reasonable hours all such records for duplication. { + The
documents, information and records described in subsections (1)
and (3) of this section and all other records of the association
shall be located within this state. + } The association shall
maintain a copy, suitable for the purpose of duplication, of the
following:
(a) The declaration, bylaws, association rules and regulations
and any amendments or supplements to them.
(b) The most recent financial statement prepared pursuant to
subsection (3) of this section.
(c) The current operating budget of the association.
{ - (5) - } { + (6) + } Upon written request of a
prospective purchaser, the association shall make available for
examination and duplication during reasonable hours the documents
and information specified in subsection { - (4) - } { +
(5) + } of this section.
{ - (6) - } { + (7) + } The association may charge a
reasonable fee for furnishing copies of any documents,
information or records described in this section. The fee may
include reasonable personnel costs for furnishing the documents,
information or records.
SECTION 21. ORS 94.704 is amended to read:
94.704. (1) { + Subject to subsection (2) of this section, + }
the declarant of a planned community shall pay all common
expenses of the planned community until the individual lots
subject to assessment are assessed for common expenses.
{ + (2) The declarant may defer payment of accrued
assessments for reserves required under ORS 94.595 for a lot
until the date the lot is conveyed. However, the declarant may
not defer payment of accrued assessments for reserves:
(a) Beyond the date of the turnover meeting provided for in the
bylaws in accordance with ORS 94.635 (3); or
(b) If a turnover meeting is not held, the date the owners
assume administrative control of the association.
(3) Failure of the declarant to deposit the balance due within
30 days after the due date constitutes a violation of ORS 94.777.
(4) The books and records of the association shall reflect the
amount the declarant owes for all reserve account
assessments. + }
{ - (2) - } { + (5)(a) + } Except for assessments under
subsections { - (3), (4) and (5) - } { + (6), (7) and (8) + }
of this section, the board of directors shall assess all common
expenses against all the lots that are subject to assessment
according to the allocations stated in the declaration.
{ + (b) + } Any { - common expense - } assessment or any
installment of the assessment past due shall bear interest at the
rate established by resolution of the board of directors.
{ + (c) + } Nothing in this section prohibits the board from
making compromises on overdue assessments if the compromise
benefits the association.
{ - (3) - } { + (6) + } Any common expense or any part of a
common expense benefiting fewer than all of the lots may be
assessed exclusively against the { + lots or + } units
benefited.
{ - (4) - } { + (7) + } Assessments to pay a judgment
against the association may be made only against the lots
existing in the planned community at the time the judgment was
entered and only in proportion to their common expense
liabilities.
{ - (5) - } { + (8) + } If { + the board of directors
determines that + } any common expense is the fault of any owner,
the homeowners association may assess the expense exclusively
against the lot of the owner.
{ - (6) - } { + (9) + } If the homeowners association
reallocates common expense liabilities, any common expense
assessment and any installment of the assessment not yet due
shall be recalculated according to the reallocated common expense
liabilities.
{ - (7) - } { + (10)(a) + } A lot owner may not claim
exemption from liability for contribution toward the common
expenses by waiving the use or enjoyment of any of the common
property or by abandoning the owner's lot.
{ + (b) + } An owner may not claim to offset an assessment
for failure of the association to perform the association's
obligations.
{ - (8) - } { + (11)(a) + } During any period of declarant
control, any special assessment for capital improvements or
additions must be approved by not less than 50 percent of the
voting rights, or such greater percentage as may be specified in
the declaration, without regard to any weighted right or special
voting right in favor of the declarant.
{ + (b) + } Nothing in this subsection is intended to
prohibit a declarant from reserving a special declarant right to
approve any such assessment.
{ + NOTE: + } Section 22 was deleted by amendment. Subsequent
sections were not renumbered.
SECTION 23. ORS 94.719 is amended to read:
94.719. Unless otherwise provided in the declaration or bylaws,
in any suit or action brought by a homeowners association to
foreclose its lien { - , - } { + or to + } collect delinquent
assessments or { + in any suit or action brought by the
declarant, the association or any owner or class of owners to + }
enforce compliance with the terms and provisions of ORS 94.550 to
94.783, the declaration or bylaws, including all amendments and
supplements thereto or any rules or regulations adopted by the
association, the prevailing party shall be entitled to recover
reasonable attorney fees therein and in any appeal therefrom.
SECTION 24. ORS 100.005 is amended to read:
100.005. As used in this chapter, unless the context requires
otherwise:
(1) 'Assessment' means any charge imposed or levied by the
association of unit owners on or against a unit owner or unit
pursuant to provisions of the declaration or the bylaws of the
condominium or provisions of ORS 100.005 to 100.910.
(2) 'Association of unit owners' means the association provided
for under ORS 100.405.
(3) 'Association property' means any real property or interest
in real property acquired, held or possessed by the association
under ORS 100.405.
(4) 'Blanket encumbrance' means a trust deed or mortgage or any
other lien or encumbrance, mechanic's lien or otherwise, securing
or evidencing the payment of money and affecting more than one
unit in a condominium, or an agreement affecting more than one
such unit by which the developer holds such condominium under an
option, contract to sell or trust agreement.
(5) 'Building' means a multiple-unit building or single-unit
buildings, or any combination thereof, comprising a part of the
property. 'Building' also includes a floating structure described
in ORS 100.020 (3)(b)(D).
(6) 'Commissioner' means the Real Estate Commissioner.
(7) 'Common elements' means the general common elements and the
limited common elements.
(8) 'Common expenses' means:
(a) Expenses of administration, maintenance, repair or
replacement of the common elements;
(b) Expenses agreed upon as common by all the unit owners; and
(c) Expenses declared common by ORS 100.005 to 100.625 or by
the declaration or the bylaws of the particular condominium.
(9) 'Condominium' means:
(a) With respect to property located within this state:
(A) The land, if any, whether { - leasehold or in - } fee
simple { + , leasehold, easement or other interest or combination
thereof, + } and whether contiguous or noncontiguous;
(B) Any buildings, improvements and structures on the property;
and
(C) Any easements, rights and appurtenances belonging to the
property { - , which are - } submitted to the provisions of ORS
100.005 to 100.625; and
(b) With respect to property located outside this state, the
property that has been committed to the condominium form of
ownership in accordance with the jurisdiction within which the
property is located.
(10) 'Conversion condominium' means a condominium in which
there is a building, improvement or structure that was occupied
prior to any negotiation and that is:
(a) Residential in nature, at least in part; and
(b) Not wholly commercial or industrial, or commercial and
industrial, in nature.
(11) 'Declarant' means a person who { - files - }
{ + records + } a declaration under ORS 100.100 or a
supplemental declaration under ORS 100.110.
(12) 'Declaration' means the instrument described in ORS
100.100 by which the condominium is created and as modified by
any amendment recorded in accordance with ORS 100.135 or
supplemental declaration recorded in accordance with ORS 100.120.
(13) 'Developer' means a declarant or any person who purchases
an interest in a condominium from declarant, successor declarant
or subsequent developer for the primary purpose of resale.
(14) 'Dwelling unit,' 'premises,' 'rental agreement ' and
'tenant' mean those terms as defined in ORS 90.100.
(15) 'Flexible condominium' means a condominium containing
property that may be reclassified or withdrawn from the
condominium pursuant to ORS 100.150 (1).
(16) 'General common elements,' unless otherwise provided in a
declaration, means { + all portions of the condominium that are
not part of a unit or a limited common element, including but not
limited to the following + }:
(a) The land, whether { - leased or in - } fee simple,
{ - except any portion thereof included in a unit or made a
limited common element by the declaration - } { + leasehold,
easement, other interest or combination thereof, together with
any rights and appurtenances + };
(b) The foundations, columns, girders, beams, supports, bearing
and shear walls, roofs, halls, corridors, lobbies, stairs, fire
escapes, entrances and exits of a building;
(c) The basements, yards, gardens, parking areas and outside
storage spaces;
(d) Installations of central services such as power, light,
gas, hot and cold water, heating, refrigeration, air
conditioning, waste disposal and incinerating;
(e) The elevators, tanks, pumps, motors, fans, compressors,
ducts and in general all apparatus and installations existing for
common use;
(f) The premises for the lodging of janitors or caretakers of
the property; and
(g) All other elements of a building { + and the
condominium + } necessary or convenient to { - its - }
{ + their + } existence, maintenance and safety, or normally in
common use.
(17) 'Leasehold' means the interest of a person, firm or
corporation who is the lessee under a lease from the owner in fee
and who files a declaration creating a condominium under ORS
100.100.
(18) 'Limited common elements' means those common elements
designated in the declaration, as reserved for the use of a
certain unit or number of units, to the exclusion of the other
units.
(19) 'Majority' or 'majority of unit owners' means more than 50
percent of the voting rights allocated to the units by the
declaration.
(20) 'Negotiation' means any activity preliminary to the
execution by either developer or purchaser of a unit sales
agreement, including but not limited to advertising, solicitation
and promotion of the sale of a unit.
(21) 'Nonwithdrawable property' means property which pursuant
to ORS 100.150 (1)(b):
(a) Is designated nonwithdrawable in the declaration and on the
plat; and
(b) Which may not be withdrawn from the condominium without the
consent of all of the unit owners.
(22) { - ' Percentage' or - } 'Percent of { - unit - }
owners' { + or ' percentage of owners' + } means the percent of
the voting rights determined under ORS 100.525.
(23) 'Purchaser' means an actual or prospective purchaser of a
condominium unit pursuant to a sale.
(24) 'Recording officer' means the county officer charged with
the duty of filing and recording deeds and mortgages or any other
instruments or documents affecting the title to real property.
(25) 'Reservation agreement' means an agreement relating to the
future sale of a unit which is not binding on the purchaser and
which grants purchaser the right to cancel the agreement without
penalty and obtain a refund of any funds deposited at any time
until purchaser executes a unit sales agreement.
(26) 'Sale' includes every disposition or transfer of a
condominium unit, or an interest or estate therein, by a
developer, including the offering of the property as a prize or
gift when a monetary charge or consideration for whatever purpose
is required by the developer. 'Interest or estate' includes a
lessee's interest in a unit for more than three years or less
than three years if the interest may be renewed under the terms
of the lease for a total period of more than three years.
'Interest or estate' does not include any interest held for
security purposes or a timeshare regulated or otherwise exempt
under ORS 94.803 and 94.807 to 94.945.
(27) 'Special declarant right' means any right, in addition to
the regular rights of the declarant as a unit owner, reserved for
the benefit of or created by the declarant under the declaration,
bylaws or the provisions of this chapter.
(28) 'Staged condominium' means a condominium which provides
for annexation of additional property pursuant to ORS 100.115 and
100.120.
(29) 'Successor declarant' means the transferee of any special
declarant right.
(30) 'Termination date' means that date described in ORS
100.105 (2)(b) or (7)(d).
(31) 'Transitional committee' means the committee provided for
under ORS 100.205.
(32) 'Turnover meeting' means the meeting provided for under
ORS 100.210.
(33) 'Unit' or 'condominium unit' means a part of the property
which:
(a) Is described in ORS 100.020 (3);
(b) Is intended for any type of independent ownership; and
(c) The boundaries of which are described pursuant to ORS
100.105 { - (1)(c) - } { + (1)(d) + }.
(34) 'Unit designation' means the number, letter or combination
thereof designating a unit in the declaration { + and on the
plat + }.
(35) 'Unit owner' means, except to the extent the declaration
or bylaws provide otherwise, the person owning fee simple
interest in a unit, the holder of a vendee's interest in a unit
under a recorded installment contract of sale and, in the case of
a leasehold condominium, the holder of the leasehold estate in a
unit.
(36) 'Unit sales agreement' means a written offer or agreement
for the sale of a condominium unit which when fully executed will
be binding on all parties. 'Unit sales agreement ' includes but
is not limited to an earnest money receipt and agreement to
purchase and other such agreements which serve as an agreement of
sale for a cash transaction or which are preliminary to the
execution of an installment contract of sale, but does not
include a reservation agreement.
(37) 'Variable property' means property described in ORS
100.150 (2) and designated as variable property in the
declaration and on the plat.
(38) 'Voting rights' means the portion of the votes allocated
to a unit by the declaration in accordance with ORS 100.105
{ - (1)(h) - } { + (1)(i) + }.
SECTION 25. ORS 100.020 is amended to read:
100.020. (1) Except as otherwise provided in subsections (2)
and (3) of this section, ORS 100.100 to 100.625 apply only to
property located within this state which a person elects to
submit to the condominium form of ownership as provided in ORS
100.005 to 100.625.
(2) Unless the declarant elects otherwise, ORS 100.175,
100.185, 100.200 (2), 100.205, 100.210, 100.300, 100.305,
100.310, 100.315 and 100.320 apply only to condominiums that
include units to be used for residential purposes.
(3) { - No - } Property may { + not + } be submitted to the
condominium form of ownership under ORS 100.005 to 100.625
unless:
(a) Each unit has legal access to a public street or highway
or, if the unit has such access only by virtue of common
ownership with other units, the declaration executed under ORS
100.110 prohibits conveyance of the unit unless after conveyance
the unit will continue to have legal access to a public street or
highway;
{ - and - }
(b) { + Subject to paragraph (c) of this subsection, + } each
unit consists of:
(A) A building or part of a building;
(B) A space used for the parking or storage of automobiles,
trucks, boats, campers or other vehicles or equipment;
(C) A space for the moorage of a watercraft, floating home or
other structure; or
(D) A floating structure, including a structure formerly used
as a ship or other vessel that:
(i) Is permanently moored to structures in a river, lake or
other waterway pursuant to a long-term lease with a remaining
term at the time the declaration and plat are recorded of not
less than 15 years;
(ii) Contains two or more residential units with a combined
floor space of not less than 2,000 square feet; and
(iii) Has upland common elements owned in fee or by leasehold
having a remaining term of not less than the remaining term of
the leasehold on the submerged or submersible land. The units in
a condominium described in this subparagraph shall be considered
real property for purposes of the Oregon Condominium Act { + ;
and
(c) Each unit has an interest in the common elements in
accordance with ORS 100.515. However, a unit may not include any
portion of the land. A declaration may not provide that there are
no common elements + }.
(4) Except as otherwise provided in subsection (5) of this
section, ORS 100.015 and 100.635 to 100.910 apply to condominiums
having units to be used for residential purposes which are not
offered for sale as a security pursuant to ORS 59.005 to 59.451,
59.660 to 59.830, 59.991 and 59.995.
(5) ORS 100.650, 100.660, 100.670, 100.675, 100.750, 100.770,
100.775, 100.780, 100.900, 100.905 and 100.990 apply to the sale
of condominium units to be used for nonresidential purposes.
(6) The units in a condominium described in subsection
(3)(b)(C) and (D) of this section shall be considered real
property for purposes of this chapter.
SECTION 26. ORS 100.105 is amended to read:
100.105. (1) A declaration shall contain:
(a) A description of the property { + , including property on
which a unit or a limited common element is located, whether held
in fee simple, leasehold, easement or other interest or
combination thereof, that is being submitted to the condominium
form of ownership and + } that conforms to the description in the
surveyor's certificate provided under ORS 100.115 (2) { - ,
whether leased or in fee simple - } .
{ + (b) Subject to subsection (11) of this section, a
statement of the interest in the property being submitted to the
condominium form of ownership, whether fee simple, leasehold,
easement or other interest or combination thereof. + }
{ - (b) - } { + (c) + } Subject to subsection (5) of this
section, the name by which the property shall be known and a
general description of each unit and the building or buildings,
including the number of stories and basements of each building,
the { + total + } number of units and the principal materials of
which they are constructed.
{ - (c) - } { + (d) + } The unit designation, { + a
statement that the + } location { + of each unit is shown on
the plat + }, a description of the boundaries and area in square
feet of each unit and any other data necessary for proper
identification. The area of a unit shall be the same as shown for
that unit on the plat described in ORS 100.115 (2).
{ - (d) - } { + (e) + } A description of the general common
elements.
{ - (e) - } { + (f) + } An allocation to each unit of an
undivided interest in the common elements in accordance with ORS
100.515 and the method used to establish the allocation.
{ - (f) - } { + (g) + } The designation of any limited
common elements including:
(A) A general statement of the nature of the limited common
element;
(B) A statement of the unit to which the use of each limited
common element is reserved, provided the statement is not a
reference to an assignment of use specified on the plat; and
(C) The allocation of use of any limited common element
appertaining to more than one unit.
{ - (g) - } { + (h) + } The method of determining liability
for common expenses and right to common profits in accordance
with ORS 100.530.
{ - (h) - } { + (i) + } The voting rights allocated to each
unit in accordance with ORS 100.525 or in the case of condominium
units committed as property in a timeshare plan defined in ORS
94.803, the voting rights allocated in the timeshare instrument.
{ - (i) - } { + (j) + } A statement of the use, residential
or otherwise, for which the building or buildings and each of the
units is intended.
{ - (j) - } { + (k) + } A statement that the designated
agent to receive service of process in cases provided in ORS
100.550 (1) is named in the Condominium Information Report which
will be filed with the Real Estate Agency in accordance with ORS
100.250 (1)(a).
{ - (k) - } { + (L) + } The { + method of amending the
declaration and the + } percentage of voting rights required to
approve an amendment of the declaration { - if such percentage
is greater than 75 percent - } { + in accordance with ORS
100.135 + }.
{ - (L) - } { + (m) + } A statement as to whether or not
the association pursuant to ORS 100.405 (5) and (8) has authority
to grant leases, easements, rights of way, licenses and other
similar interests affecting the general and limited common
elements of the condominium and consent to vacation of roadways
within and adjacent to the condominium.
{ - (m) - } { + (n) + } If the condominium contains a
floating structure described in ORS 100.020 (3), a statement
regarding the authority of the board of directors of the
association, subject to ORS 100.410, to temporarily relocate the
floating structure without a majority vote of affected unit
owners.
{ - (n) - } { + (o) + } Any restrictions on alienation of
units. Any such restrictions created by documents other than the
declaration may be incorporated by reference in the declaration
to the official records of the county in which the property is
located.
{ - (o) - } { + (p) + } Any other details regarding the
property that the person executing the declaration considers
desirable. However, if a provision required to be in the bylaws
under ORS 100.415 is included in the declaration, the voting
requirements for amending the bylaws shall also govern the
amendment of the provision in the declaration.
(2) In the event the declarant proposes to annex additional
property to the condominium under ORS 100.125, the declaration
shall also contain a general description of the plan of
development, including:
(a) The maximum number of units to be included in the
condominium.
(b) The date after which any right to annex additional property
will terminate.
(c) A general description of the nature and proposed use of any
additional common elements which declarant proposes to annex to
the condominium, if such common elements might substantially
increase the proportionate amount of the common expenses payable
by existing unit owners.
(d) { + A statement that + } the method used to establish the
allocation of undivided interest in the common elements { - of
each unit - } { + , the method used to determine liability for
common expenses and right to common profits and the method used
to allocate voting rights for each unit annexed shall be as
stated in the declaration in accordance with subsection (1)(f),
(h) and (i) of this section + }.
(e) Such other information as the Real Estate Commissioner
shall require in order to carry out the purposes of ORS 100.015,
100.635 to 100.730 and 100.740 to 100.910.
(3) Except where expressly prohibited by the declaration and
subject to the requirements of ORS 100.135 (1) and subsections
(9) and (10) of this section:
(a) Not later than two years following the termination
{ - date - } { + dates + } specified in { - subsection - }
{ + subsections + } (2)(b) { + and (7)(d) + } of this section,
such termination { - date - } { + dates + } may be extended
for a period not exceeding two years; and
(b) The general description under subsection (2)(c) of this
section and the information included in the declaration in
accordance with subsection (7)(c), (g) and (h) of this section
may be changed by an amendment to the declaration.
(4) The information included in the declaration in accordance
with subsection (2)(a) and (d) of this section and subsection
(7)(a), (b), { - (d), - } (e), (f) and (k) of this section may
not be changed unless all owners agree to the change and record
an amendment to the declaration in accordance with this chapter.
(5) The name of the property shall include the word '
condominium' or 'condominiums' or the words 'a condominium. '
(6) { - No - } { + A + } condominium { - shall - } { +
may not + } bear a name which is the same as or deceptively
similar to the name of any other condominium located in the same
county.
(7) If the condominium is a flexible condominium containing
variable property, the declaration shall also contain a general
description of the plan of development, including:
(a) A statement that the rights provided for under ORS 100.150
(1) are being reserved.
(b) A statement:
(A) Of any limitations on rights reserved under ORS 100.150
(1), including whether the consent of any unit owner shall be
required, and if so, a statement of the method by which the
consent shall be ascertained; or
(B) That there are no limitations on rights reserved under ORS
100.150 (1).
(c) { - A metes and bounds legal description of all - }
{ + A statement of the total number of tracts of + } variable
property within the condominium { - . If there is more than one
parcel, a metes and bounds legal description for each parcel
and - } { + , including:
(A) A designation of each tract as withdrawable or
nonwithdrawable variable property;
(B) Identification of each variable tract by a label in
accordance with ORS 100.115 (2)(i);
(C) + } A statement of the method of labeling each
{ - parcel - } { + tract + } depicted on the plat in
accordance with ORS 100.115 (2)(i) { - (B) - } { + ; and
(D) A statement of the total number of tracts of each type of
variable property + }.
(d) The termination date, which is the date or time period
after which any right reserved under ORS 100.150 (1) will
terminate, and a statement of the circumstances, if any, that
will terminate any right on or before the date or time period
specified. The date or time period may not exceed seven years
from the recording of the conveyance of the first unit in the
condominium to a person other than the declarant. Recording shall
be in the county in which the property is located.
(e) The maximum number of units that may be created.
(f) { + A statement that + } the method used to establish the
allocations of undivided interest in the common elements { - of
each unit - } { + , the method used to determine liability for
common expenses and right to common profits and the method used
to allocate voting rights + } as additional units are
created { + shall be the same as stated in the declaration in
accordance with subsection (1)(f), (h) and (i) of this
section + }.
(g) A general description of all existing improvements and the
nature and proposed use of any improvements that may be made on
variable property if the improvements might substantially
increase the proportionate amount of the common expenses payable
by existing unit owners.
(h) A statement of whether or not the declarant reserves the
right to create limited common elements within any variable
property, and if so, a general description of the types that may
be created.
{ + (i) A statement that the plat shows the location and
dimensions of all withdrawable variable property that is labeled
' WITHDRAWABLE VARIABLE PROPERTY.' + }
{ - (i) - } { + (j) + } A statement that if by the
termination date all or a portion of the { + withdrawable + }
variable property { - not designated as nonwithdrawable
variable property - } has not been withdrawn or reclassified,
{ - such - } { + the withdrawable + } property shall
automatically be withdrawn from the condominium as of
{ - such - } { + the termination + } date.
{ - (j) - } { + (k) + } A statement of the rights of the
association under ORS 100.155 (2).
{ - (k) - } { + (L) + } A statement of whether or not all
or any portion of the variable property may not be withdrawn from
the condominium and, if so, with respect to { - such - } { +
the + } nonwithdrawable variable property:
(A) A statement that the plat { - shall show - }
{ + shows + } the location and dimensions of all { - such - }
{ + nonwithdrawable + } property { - which shall be - }
{ + that is + } labeled 'NONWITHDRAWABLE VARIABLE PROPERTY. '
{ - (B) A metes and bounds legal description of each parcel.
If there is more than one parcel, a metes and bounds legal
description for each parcel and a statement of the method of
labeling each parcel depicted on the plat in accordance with ORS
100.115 (2)(i)(B). - }
{ - (C) - } { + (B) + } A description of all improvements
that may be made and a statement of the intended use of each
improvement.
{ - (D) - } { + (C) + } A statement { - , - }
that { + , + } if by the termination date { - , - } all or a
portion of the variable property designated as ' nonwithdrawable
variable property' has not been reclassified,
{ - such - } { + the + } property shall automatically be
reclassified as of
{ - such - } { + the termination + } date as a general common
element of the condominium and any interest in such property held
for security purposes shall be automatically extinguished by such
classification.
{ - (E) - } { + (D) + } A statement of the rights of the
association under ORS 100.155 (3).
{ - (L) - } { + (m) + } A statement by the local governing
body or appropriate department thereof that the withdrawal of any
variable property { - not - } designated as '
{ - nonwithdrawable - } { + withdrawable + } variable
property' in the declaration in accordance with paragraph
{ - (k) - } { + (L) + } of this subsection, will not violate
any applicable planning or zoning regulation or ordinance. The
statement may be attached as an exhibit to the declaration.
(8) The plan of development for any variable property included
in the declaration { + or any supplemental declaration of any
stage + } in accordance with subsection (7) of this section shall
be subject to any plan of development included in the declaration
in accordance with subsection (2) of this section { + , except
that the time limitation specified in subsection (7)(d) of this
section shall govern any right reserved under ORS 100.150 (1)
with respect to any variable property + }.
(9) The information included in the declaration in accordance
with subsection (7) { - (i), (j) and (L) - } { + (j), (k) and
(m) + } of this section may not be deleted by amendment.
(10) Approval by the unit owners shall not be required to
redesignate variable property as 'nonwithdrawable variable
property' by supplemental declaration or amendment if such
redesignation is required by the local governing body or
appropriate department thereof to comply with any planning or
zoning regulation or ordinance. If as a result of such
redesignation the information required to be included in the
supplemental declaration or an amendment under subsection
{ - (7)(k)(C) - } { + (7)(L)(B) + } of this section is
inconsistent with the information included in the declaration or
supplemental declaration in accordance with subsection (7)(g) of
this section, an amendment to the declaration approved by at
least 75 percent of
{ - all voting rights - } { + owners + } shall be required.
{ + (11) The statement of an interest in property other than
fee simple submitted to the condominium form of ownership and any
easements, rights or appurtenances belonging to property
submitted to the condominium form of ownership, whether leasehold
or fee simple, shall include:
(a) A reference to the recording index numbers and date of
recording of the instrument creating the interest; or
(b) A reference to the law, administrative rule, ordinance or
regulation that creates the interest if the interest is created
under law, administrative rule, ordinance or regulation and not
recorded in the office of the recording officer of the county in
which the property is located. + }
SECTION 27. ORS 100.110 is amended to read:
100.110. (1) Before a declaration, supplemental declaration or
an amendment thereto may be recorded, it must be approved as
provided in this section by the county assessor and the Real
Estate Commissioner. Before a declaration or supplemental
declaration may be recorded, it must be approved by the tax
collector of the county in which the property is located.
{ - No - } { + A + } declaration or amendment thereto
{ - shall - } { + may not + } be approved unless the
requirements of subsections (2) to (6) of this section are met.
Approval shall be evidenced by execution of the declaration or
amendment or by a written approval attached thereto.
(2) The county assessor of the county in which the property is
located shall approve a declaration, supplemental declaration or
amendment thereto if:
(a) The name complies with ORS 100.105 (5) and (6); and
(b) The plat and floor plans comply with the requirements of
ORS 100.115.
(3) The tax collector of the county in which the property is
located shall approve the declaration or supplemental
declaration, or an amendment that adds property to the
condominium or changes the boundary of a unit for which a plat is
required under ORS 100.115 { - (6)(a) - } { + (9)(a) + }, if:
(a) All ad valorem taxes, special assessments, fees, or other
charges required by law to be placed upon the tax roll which have
or will become a lien upon the property during the tax year have
been paid;
(b) Advance payment of ad valorem taxes, special assessments,
fees or other charges which are not on the tax roll and for which
payment is required under paragraph (a) of this subsection has
been made to the tax collector utilizing the procedures contained
in ORS 92.095 and 311.370; and
(c) The additional taxes, penalty, and any interest
attributable thereto, required because of disqualification of the
property from any special assessment have been paid.
(4) Subject to subsection (5) of this section, the commissioner
shall approve the declaration or amendment thereto if:
(a) The declaration or the amendment thereto complies with the
requirements of ORS 100.105 and 100.135;
(b) The bylaws adopted under ORS 100.410 comply with the
requirements of ORS 100.410 and 100.415; { - and - }
(c) The plat and floor plans comply with the requirements of
ORS 100.115 { + ;
(d) The declaration is for a conversion condominium and the
declarant has submitted:
(A) An affidavit that the notice of conversion was given in
accordance with ORS 100.305 and that the notice period has
expired;
(B) An affidavit that the notice of conversion was given in
accordance with ORS 100.305 and copies of the written consent of
any tenants who received the notice of conversion before
expiration of the notice; or
(C) Any applicable combination of the requirements of
subparagraphs (A) and (B) of this paragraph; and
(e) A paper copy of the plat executed by the declarant and
prepared in conformance with ORS 100.115 and a certification of
plat execution, on a form prescribed and furnished by the
commissioner, have been submitted stating that the paper copy is
a true copy of the plat signed by the declarant. The
certification may be executed by the declarant, the professional
land surveyor who signed the surveyor's certificate on the plat,
the attorney for the declarant, a representative of the title
insurance company that issued the information required under ORS
100.640 (5) or 100.660 (2)(d) or another person authorized by the
declarant in writing to execute the certification + }.
(5) Approval by the commissioner shall not be required for an
amendment to a declaration transferring the right of use of a
limited common element pursuant to ORS 100.515 (5).
(6) Before the commissioner approves the declaration or
amendment thereto under this section:
(a) The declarant shall pay to the commissioner a fee
determined by the commissioner under ORS 100.670; and
(b) For an amendment, the Condominium Information Report and
the Annual Report described in ORS 100.260 shall be designated
current by the Real Estate Agency as provided in ORS 100.255 and
the fee required under ORS 100.670 shall be paid.
(7) If the declaration or amendment thereto approved by the
commissioner under subsection (4) of this section is not recorded
in accordance with ORS 100.115 within two years from the date of
approval by the commissioner, the approval shall automatically
expire and the declaration or amendment thereto must be
resubmitted for approval in accordance with this section. The
commissioner's approval shall set forth the date on which the
approval will expire.
SECTION 28. ORS 100.115 is amended to read:
100.115. (1) When a declaration { + or a supplemental
declaration under ORS 100.125 + }is made and approved as
required, it shall, upon the payment of the fees provided by law,
be recorded by the recording officer. The fact of recording and
the date thereof shall be entered thereon. At the time of
recording { - a - } { + the + } declaration { + or
supplemental declaration + }, the person offering it for record
shall also file an exact copy, certified by the recording officer
to be a true copy thereof, with the county assessor.
(2) A plat of the land described in the declaration { + or a
supplemental plat described in a supplemental declaration + },
complying with ORS 92.050, 92.060 (1) and (2), 92.080 and 92.120,
shall be recorded simultaneously with the declaration { + or
supplemental declaration + }. Upon request, the person offering
the plat { + or supplemental plat + }for recording shall also
file an exact copy, certified by the surveyor who made the plat
to be an exact copy of the plat, with the county assessor and the
county surveyor. The exact copy shall be made on a suitable
drafting material having the characteristics of strength,
stability and transparency required by the county surveyor. The
plat { + or supplemental plat, titled in accordance with
subsection (4) of this section, + }shall:
(a) Show the location of:
(A) All buildings and public roads. The location shall be
referenced to a point on the boundary of the property; and
(B) For a condominium containing units described in ORS 100.020
(3)(b)(C) or (D), the moorage space or floating structure. The
location shall be referenced to a point on the boundary of the
upland property regardless of a change in the location resulting
from a fluctuation in the water level or flow.
(b) Show the designation, location, dimensions and area in
square feet of each unit including:
(A) For units in a building described in ORS 100.020 (3)(b)(A),
the horizontal and vertical boundaries of each unit and the
common elements to which each unit has access. The vertical
boundaries shall be referenced to a known benchmark elevation or
other reference point as approved by the city or county surveyor;
(B) For a space described in ORS 100.020 (3)(b)(B), the
horizontal boundaries of each unit and the common elements to
which each unit has access. If the space is located within a
structure, the vertical boundaries also shall be shown and
referenced to a known benchmark elevation or other reference
point as approved by the city or county surveyor;
(C) For a moorage space described in ORS 100.020 (3)(b)(C), the
horizontal boundaries of each unit and the common elements to
which each unit has access; and
(D) For a floating structure described in ORS 100.020
(3)(b)(D), the horizontal and vertical boundaries of each unit
and the common elements to which each unit has access. The
vertical boundaries shall be referenced to an assumed elevation
of an identified point on the floating structure even though the
assumed elevation may change with the fluctuation of the water
level where the floating structure is moored.
(c) Identify and show, to the extent feasible, the location
{ - , - } { + and + } dimensions { - and area in square
feet - } of all limited common elements described in the
declaration. The plat
{ - shall - } { + may + } not include any statement
indicating to which unit the use of any noncontiguous limited
common element is reserved.
(d) Include a statement, including signature and official seal,
of a registered architect, registered professional land surveyor
or registered professional engineer certifying that the plat
fully and accurately depicts the boundaries of the units of the
building and that construction of the units and buildings as
depicted on the plat has been completed, except that the
professional land surveyor who prepared the plat need not affix a
seal to the statement.
(e) Include a surveyor's certificate, complying with ORS
92.070 { + , that includes information in the declaration in
accordance with ORS 100.105 (1)(a) and a metes and bounds
description or other description approved by the city or county
surveyor + }.
(f) Include a statement by the declarant that the property and
improvements described and depicted on the plat are subject to
the provisions of ORS 100.005 to 100.625.
(g) Include such signatures of approval as may be required by
local ordinance or regulation.
(h) Include any other information or data not inconsistent with
the declaration that the declarant desires to include.
(i) If the condominium is a flexible condominium,
{ - also: - }
{ - (A) - } show the location and dimensions of all variable
property { - described - } { + identified + } in the
declaration and label { - all such - } { + the variable + }
property as ' { + WITHDRAWABLE + } VARIABLE PROPERTY { - . - }
' { + or 'NONWITHDRAWABLE VARIABLE PROPERTY,' with a letter
different from those designating a unit, building or other tract
of variable property. + } If there is more than one
{ - parcel - } { + tract + }, { - label - } each
{ - parcel - } { + tract shall be labeled in the same
manner. + } { - with letters or numbers different from those
designating any unit, building or other parcel of variable
property. - }
{ - (B) If any of the variable property is nonwithdrawable,
also show the location and dimensions of all nonwithdrawable
variable property and label all such property as 'NONWITHDRAWABLE
PROPERTY.' If there is more than one parcel, label each parcel
with letters or numbers different from those designating any
unit, building, parcel or variable property or other parcel of '
nonwithdrawable variable property.' - }
(3) The supplemental plat required under ORS 100.150 (1) shall
be recorded simultaneously with the supplemental declaration.
Upon request, the person offering the supplemental plat for
recording shall also file an exact copy, certified by the
surveyor who made the plat to be an exact copy of the plat, with
the county assessor and the county surveyor. The exact copy shall
be made on a suitable drafting material having the
characteristics of strength, stability and transparency required
by the county surveyor. The supplemental plat { + , titled in
accordance with subsection (4) of this section, + } shall:
(a) Comply with ORS 92.050, 92.060 (1), (2) and (4), 92.080,
92.120 and { - subsection - } { + subsections + } (4)
{ + and (5) + } of this section.
(b) If any property is withdrawn:
(A) Show the resulting perimeter boundaries of the condominium
after the withdrawal; and
(B) Show the information required under subsection (2)(i) of
this section as it relates to any remaining variable property.
(c) If any property is reclassified, show the information
required under subsection (2)(a) to (d) of this section.
(d) Include a 'Declarant's Statement' that the property
described on the supplemental plat is reclassified or withdrawn
from the condominium and that the condominium exists as described
and depicted on the plat.
(e) Include a surveyor's affidavit complying with ORS 92.070.
{ + (4) The title of each supplemental plat described in ORS
100.120 shall include the complete name of the condominium,
followed by the additional language specified in this subsection.
Each supplemental plat for a condominium recorded on or after the
effective date of this 2001 Act shall be numbered sequentially
and shall:
(a) If property is annexed under ORS 100.125, include the words
'Supplemental Plat No. ___: Annexation of Stage; or
(b) If property is reclassified under ORS 100.150, include the
words 'Supplemental Plat No. ___: Reclassification of Variable
Property. + }
{ - (4) - } { + (5) + } Before a plat or a supplemental
plat may be recorded, it must be approved by the city or county
surveyor as provided in ORS 92.100. Before approving the plat as
required by this section, the city or county surveyor shall { + :
(a) + } Check the boundaries of the plat and units and
{ - shall - } take { - such - } measurements and make
{ - such - } computations { - as are - } necessary to
determine that the plat complies with this section.
{ + (b) Determine that the name complies with ORS 100.105 (5)
and (6).
(c) Determine that the following are consistent:
(A) The designation and area in square feet of each unit shown
on the plat and the unit designations and areas contained in the
declaration in accordance with ORS 100.105 (1)(d);
(B) Limited common elements identified on the plat and the
information contained in the declaration in accordance with ORS
100.105 (1)(g);
(C) The description of the property in the surveyor's
certificate included on the plat and the description contained in
the declaration in accordance with ORS 100.105 (1)(a); and
(D) For a flexible condominium, the variable property depicted
on the plat and the identification of the property contained in
the declaration in accordance with ORS 100.105 (7)(c).
(6) The person offering the plat for approval shall:
(a) Submit a copy of the proposed declaration and bylaws or
applicable supplemental declaration at the time the plat is
submitted; and
(b) Submit the original or a copy of the executed declaration
and bylaws or the applicable supplemental declaration approved by
the commissioner if required by law prior to approval.
(7) + }For performing { - that service - } { + the
services described in subsection (5)(a) to (c) of this
section + }, the city surveyor or county surveyor shall collect
from the person offering the plat for approval a fee of $150 plus
$25 per building. The governing body of a city or county may
establish a higher fee by resolution or order.
{ - (5) - } { + (8) + }(a) Whenever variable property is
reclassified or withdrawn as provided in ORS 100.155 (1) or (2)
or property is removed as provided in ORS 100.600 (2), the county
surveyor shall, upon { + the surveyor's copy of + }all
previously recorded plats relating to the variable property or
property being removed and upon any copy thereof certified by the
county clerk, trace, shade or make other appropriate marks or
notations, including the date and the surveyor's name or
initials, with archival quality black ink in such manner as to
denote the reclassification, withdrawal or removal. The recording
index numbers and date of recording of the supplemental
declaration and plat or amendment and amended plat shall also be
referenced on { + the copy of + } each plat. { + The original
plat may not be changed or corrected after the plat is
recorded. + }
(b) For performing the activities described in this subsection,
the county clerk shall collect a fee set by the county governing
body. The county clerk shall also collect a fee set by the county
governing body to be paid to the county surveyor for services
provided under this { - section - } { + subsection + }.
{ - (6) - } { + (9) + } In addition to the provisions of
subsection { - (7) - } { + (10) + } of this section, a plat,
including any floor plans that are a part of the plat, may be
amended as provided in this subsection.
(a)(A) Except as otherwise provided in ORS 100.600, a change to
the boundary of the property, a unit or a limited common element
or a change to the configuration of other information required to
be graphically depicted on the plat shall be made by a plat
entitled 'Plat Amendment' that shall reference in the title of
the amendment the recording information of the original plat and
any previous plat amendments.
(B) The plat amendment shall comply with ORS 92.050, 92.060
(1), (2) and (4), 92.080 and 92.120 and shall include:
(i) A graphic depiction of the change.
(ii) For a change to the boundary of the property, a surveyor's
certificate, complying with ORS 92.070.
(iii) For a change to a boundary of a unit or a limited common
element or a change to other information required to be
graphically depicted, the statement of a registered architect,
registered professional land surveyor or registered professional
engineer described in subsection (2)(d) of this section.
(iv) A declaration by the chairperson and secretary on behalf
of the association of unit owners that the plat is being amended
pursuant to this subsection. Such declaration shall be executed
and acknowledged in the manner provided for acknowledgement of
deeds.
(C) The plat amendment shall be accompanied by an amendment to
the declaration authorizing such plat amendment. The declaration
amendment shall be executed, approved and recorded in accordance
with ORS 100.110 and 100.135.
(D) Before a plat amendment may be recorded, it must be
approved by the city or county surveyor as provided in ORS
92.100. The surveyor shall approve the plat amendment if it
complies with the requirements of this subsection. { + The
person offering the plat amendment shall:
(i) Submit a copy of the proposed amendment to the declaration
required under this paragraph when the plat amendment is
submitted; and
(ii) Submit the original or a copy of the executed amendment to
the declaration approved by the commissioner if required by law
prior to approval of the plat amendment. + }
(E) Upon request, the person offering the plat amendment for
recording shall also file an exact copy, certified by the
surveyor who made the plat to be an exact copy of the plat
amendment, with the county assessor and the county surveyor. The
exact copy shall be made on suitable drafting material having the
strength, stability and transparency required by the county
surveyor.
(b)(A) A change to a restriction or other information not
required to be graphically depicted on the plat may be made by
amendment of the declaration without a plat amendment described
in paragraph (a) of this subsection. An amendment under this
paragraph shall include:
(i) A reference to recording index numbers and date of
recording of the declaration, plat and any applicable
supplemental declarations, amendments, supplemental plats or plat
amendments.
(ii) A description of the change to the plat.
(iii) A statement that the amendment was approved in accordance
with the declaration and ORS 110.135.
(B) The amendment shall be executed, approved and recorded in
accordance with ORS 100.110 and 100.135.
(C) Before the amendment may be recorded, it must be approved
by the city or county surveyor as provided in ORS 92.100. The
surveyor shall approve the amendment if it complies with this
subsection. Such approval shall be evidenced by execution of the
amendment or by written approval attached thereto.
(c)(A) Floor plans of a condominium for which a plat was not
required at the time of creation may be amended by an amendment
to the declaration. An amendment under this paragraph shall
include:
(i) A reference to recording index numbers and date of
recording of the declaration and any applicable supplemental
declarations or amendments.
(ii) A description of the change to the floor plans.
(iii) A graphic depiction of any change to the boundaries of a
unit or common element and a statement by a registered architect,
registered professional land surveyor or registered professional
engineer certifying that such graphic depiction fully and
accurately depicts the boundaries of the unit or common element
as it currently exists.
(B) The amendment shall be approved and recorded in accordance
with ORS 100.110 and 100.135 except that any change to the floor
plans need only comply with the requirements of the unit
ownership laws in effect at the time the floor plans were
initially recorded.
(d) After recording of any declaration amendment or plat
amendment pursuant to this subsection, the county surveyor shall,
upon { + the surveyor's copy of + } all previously recorded
plats relating to the condominium and any copies filed under ORS
92.120 (3), make such appropriate marks or notations, including
the date and the surveyor's name or initials, with archival
quality black ink in such manner as to denote the changes. The
recording index numbers and date of recording of the declaration
amendment and any plat amendment shall also be referenced on
{ + the copy of + } each plat. { + The original plat may not be
changed or corrected after the plat is recorded. + } For
performing the services described in this subsection, the county
surveyor shall collect from the person offering the plat
amendment or declaration amendment for approval a fee established
by the county governing body.
{ - (7) - } { + (10) + } The following may be amended by an
affidavit of correction in accordance with ORS 92.170:
(a) A plat, whenever recorded.
(b) Floor plans recorded prior to October 15, 1983.
SECTION 29. ORS 100.120 is amended to read:
100.120. (1) To annex additional property to the condominium or
to reclassify variable property under ORS 100.125 or 100.150, a
supplemental declaration and { + a supplemental + }plat shall
be executed, approved and recorded by declarant at the time of
each annexation or reclassification. { + The supplemental plat
shall comply with ORS 100.115 and + } { - such - } { +
the + } supplemental declarations { - and plats - } shall:
{ + (a) Include a reference to recording index numbers and
date of recording of the initial declaration and bylaws. + }
{ - (a) - } { + (b) + } Be consistent with the provisions
of the original declaration prepared pursuant to ORS 100.105 { +
and any prior recorded supplemental declarations + }.
{ - (b) - } { + (c) + } Contain the information required by
ORS 100.105 (1) insofar as that information relates to the
property being annexed or reclassified.
{ - (c) - } { + (d) + } State the allocation of undivided
interest in the common elements of each unit previously submitted
to the provisions of this chapter upon the creation or annexation
of the additional property.
{ - (d) - } { + (e) + } If the stage being annexed contains
any variable property, include the information required under ORS
100.105 (7) insofar as that information relates to the property
being annexed. The termination date { + shall be consistent
with the information included in the declaration in accordance
with ORS 100.105 (2)(b) but + } may not exceed seven years from
the recording of the conveyance of the first unit in { - the
condominium - } { + the stage + } to a person other than the
declarant. Recording shall be in the county in which the property
is located.
(2) If the Condominium Information Report and the Annual Report
described in ORS 100.250 are designated current as provided in
ORS 100.255, all such supplemental declarations and plats shall
be approved, executed and recorded as provided in ORS 100.100,
100.110 and 100.115. No unit being annexed or created by a
supplemental declaration shall be conveyed until after such
recording.
(3) To withdraw all or a portion of variable property from a
flexible condominium pursuant to ORS 100.150 (1)(b), a
supplemental declaration and plat shall be recorded in accordance
with subsection (2) of this section. The supplemental plat shall
comply with ORS 100.115 (3) and the supplemental declaration
shall:
(a) Be consistent with the provisions of the declaration or
supplemental declaration drawn pursuant to ORS 100.105 (7).
(b) Include a metes and bounds legal description of the
variable property being withdrawn.
(c) Include a metes and bounds legal description of the
resulting boundaries of the condominium after the withdrawal.
(d) State whether or not any variable property remains which
may be reclassified or withdrawn from the condominium and, if
property may be withdrawn, include the statement required under
ORS 100.105 { - (7)(L) - } { + (7)(m) + }.
(e) If any variable property is being redesignated as '
nonwithdrawable variable property,' include the information
required under ORS 100.105 { - (7)(k) - } { + (7)(L) + }.
(4) Except as provided in subsection (5) of this section, as to
property submitted to unit ownership after October 4, 1977,
additional units may not be added within { - land - }
{ + property + } previously submitted to unit ownership unless
all unit owners consent to an amendment to the declaration, plat
and any floor plans recorded pursuant to ORS 100.115 in order to
provide for such additional units.
(5) As to property submitted to unit ownership before September
27, 1987, if the declaration provides that additional property
may be annexed to the condominium, any subsequent stage may
contain variable property. The termination date may not be later
than the earlier of:
(a) The date specified in the declaration under ORS 100.105
(2)(b); or
(b) Seven years from the recording of the conveyance of the
first unit in the condominium to a person other than the
declarant. Recording shall be in the county in which the property
is located.
SECTION 30. ORS 100.125 is amended to read:
100.125. { + Subject to ORS 100.120 (4), + } if the
declaration complies with ORS 100.105 (2), until the termination
date, additional property may be annexed to the condominium by
the recording of a supplemental declaration and
{ + supplemental + } plat in accordance with ORS 100.115 and
100.120.
SECTION 31. ORS 100.135 is amended to read:
100.135. (1) Except as otherwise provided in ORS 100.005 to
100.625, an amendment of the declaration { - shall - } { +
is + } not { - be - } effective unless:
(a) { - Such - } { + The + } amendment is approved by the
unit owners as provided in this section and the Real Estate
Commissioner and county assessor according to ORS 100.110; and
(b) { - A copy of the declaration as amended or - } The
amendment
{ - thereto - } , certified by the chairperson and secretary of
the association of unit owners as being adopted in accordance
with the declaration and the provisions of this section and
acknowledged in the manner provided for acknowledgment of deeds,
is recorded { + notwithstanding a provision in a declaration,
including a declaration recorded before the effective date of
this 2001 Act, that requires amendments to be executed and
acknowledged by all owners approving the amendment + }.
(2) Except as otherwise provided in ORS 100.105 { + ,
100.130 + } or this section, the declaration may be amended only
with the approval of at least 75 percent of { - the unit - }
owners, or such greater percentage as may be required by the
declaration.
(3) Unless the declaration requires a greater percentage:
(a) The declaration and plat may be amended to change a general
common element to a limited common element or change the boundary
of a limited common element with the approval of at least 75
percent of { - the unit - } owners and approval of the owners
of all units to which the limited common element appertains.
(b) The declaration may be amended to change a limited common
element, or portion thereof, to a general common element with the
approval of the owners of all units to which the limited common
element appertains and the board of directors.
(4)(a) Except as otherwise provided in ORS 100.120, 100.130,
100.515, 100.600, 100.605 and 100.625 and paragraph (b) of this
subsection or other provisions of the Oregon Condominium Act, an
amendment that changes the boundary of the property or a unit
shall be approved by all unit owners. Such amendment shall
constitute a conveyance and shall include words of conveyance. In
addition to the certification required under subsection (1)(b) of
this section, an amendment to the boundary of a unit shall also
be executed by the owners of all affected units.
(b) An amendment that adds property owned by the association to
the condominium as a common element shall constitute a conveyance
and shall:
(A) Be approved by at least 75 percent of { - the unit - }
owners;
(B) Contain words of conveyance;
(C) Be executed by the chairperson and secretary of the
association on behalf of the unit owners and be certified in
accordance with subsection (1)(b) of this section; and
(D) Be accompanied by a plat amendment in accordance with ORS
100.115.
(c) Nothing in paragraph (b) of this subsection is intended to
require property acquired or held by the association pursuant to
ORS 100.405 (4)(i) to be added to the condominium.
(5) Except as otherwise provided in ORS 100.005 to 100.625, no
amendment may change the allocation of undivided interest in the
common elements, method of determining liability for common
expenses, right to common profits or voting rights of any unit
unless such amendment has been approved by the owners of the
affected units.
(6) The declaration may not be amended to limit or diminish any
right of a declarant reserved under ORS 100.105 (2) or (7) or any
other special declarant right without the consent of the
declarant. However, the declarant may waive the declarant's right
of consent.
(7) Nothing in this section shall affect any other approval
that may be required by the declaration, bylaws or other
instrument.
(8) An amendment to a declaration or a supplemental declaration
shall be conclusively presumed to have been regularly adopted in
compliance with all applicable procedures relating to such
amendment unless an action is brought within one year after the
date such amendment was recorded or the face of the recorded
amendment indicates that the amendment received the approval of
fewer votes than are required for such approval. However, nothing
in this subsection shall prevent the further amendment of an
amended declaration or plat in accordance with ORS 100.005 to
100.625.
SECTION 32. ORS 100.150 is amended to read:
100.150. (1) With regard to a flexible condominium, before the
termination date, and by recording a supplemental declaration and
{ + a supplemental + }plat in accordance with ORS 100.115 and
100.120, the declarant may:
(a) Reclassify all or a portion of the property designated as
variable in the declaration and on the plat, as one or more
general common elements, limited common elements, units or a
combination of the elements and units.
(b) Unless designated in the declaration or on the plat as
nonwithdrawable property, withdraw all or a portion of the
variable property from the condominium.
(2) Until variable property is withdrawn or reclassified as
provided in subsection (1) of this section or under ORS 100.155
(1):
(a) The property shall be a distinct classification of property
and { - shall - } { + may + } not be a common element or unit
of the condominium.
(b) The property shall be considered a parcel of real property
{ - , whether leased or in fee simple, - } and shall be subject
to separate assessment and taxation by any taxing unit in like
manner as other parcels of real property.
(c) Unless otherwise specifically provided in the declaration
or supplemental declaration:
(A) The declarant shall be responsible for the payment of all
assessments, taxes and other expenses of the variable property.
If the declarant fails to pay any expenses of any variable
property designated as nonwithdrawable variable property, the
board of directors may elect to pay the expenses and assess the
unit owners as a common expense. All costs incurred may be
charged to the declarant.
(B) Ownership or occupancy of variable property shall not
confer any right to use the common elements of the condominium.
(C) Ownership or occupancy of units shall not confer any right
to use variable property.
(D) Variable property shall not be subject to assessments for
expenses of the condominium.
SECTION 33. ORS 100.155 is amended to read:
100.155. (1) If by the termination date specified in the
declaration there is any remaining variable property:
(a) Any property designated nonwithdrawable { + variable
property + } shall become part of the common elements and any
interest in such property held for security purposes shall be
automatically extinguished by { - such - } reclassification
{ - ; and - } { + . + }
(b) Any property { - not - } designated
{ - nonwithdrawable - } { + withdrawable variable + } property
shall be automatically withdrawn from the condominium as of
{ - such - } { + the termination + } date.
{ + (c) Subject to paragraph (d) of this subsection, the
association may record in the office of the recording officer in
the county in which the condominium is located:
(A) For property reclassified under paragraph (a) of this
subsection, a 'Statement of Reclassification of Variable
Property' stating that the remaining nonwithdrawable variable
property has been reclassified to common elements pursuant to
paragraph (a) of this subsection.
(B) For property withdrawn under paragraph (b) of this
subsection, a 'Statement of Withdrawal of Variable Property from
Condominium' stating that remaining withdrawable variable
property has been withdrawn from the condominium pursuant to
paragraph (b) of this subsection.
(d) A statement described in paragraph (c) of this subsection
shall:
(A) Include the name of the condominium, a reference to the
recording index numbers and date of recording of the declaration,
the plat creating the affected variable property and any
applicable supplemental declaration.
(B) Include a description of the reclassified or withdrawn
variable property complying with ORS 93.600.
(C) Be executed by the chairperson and secretary of the
association and acknowledged in the manner provided for
acknowledgment of deeds.
(e) After recording a statement under paragraph (c) of this
subsection, the association shall provide a copy of the recorded
statement to the county surveyor. Upon receipt of the copy or
other notification, the county surveyor shall, upon the
surveyor's copy of all previously recorded plats relating to the
condominium and any copies of the plat filed under ORS 92.120
(3), make appropriate marks and notations, including the date and
the surveyor's name or initials, with archival quality black ink
in a manner that denotes the reclassification or withdrawal. The
recording index numbers and date of recording of the statement
shall also be referenced on the copy of each plat. The original
plat may not be changed or corrected after it is recorded with
the county clerk. + }
(2) { + (a) + } Unless expressly prohibited by the declaration,
any variable property automatically withdrawn from the
condominium under subsection (1)(b) of this section or
voluntarily withdrawn under ORS 100.150 (1)(b) may be later
annexed to the condominium by the recording of a supplemental
declaration and plat in accordance with ORS 100.120 (2) if such
action is first approved by at least 75 percent of all voting
rights in the manner required for an amendment to the
declaration.
{ + (b) + } The supplemental declaration and plat shall be
executed by the chairperson and secretary on behalf of the
association and acknowledged in the manner provided for
acknowledgment of deeds by such officers. Except for the
termination date, the supplemental declaration shall comply with
ORS 100.120 (1) and shall state that the annexation was approved
by at least 75 percent of all voting rights.
(3) { + (a) + } Unless expressly prohibited by the declaration
and notwithstanding the termination date, the association may,
with respect to any variable property automatically reclassified,
exercise any rights previously held by the declarant. The
exercise of any right shall first be approved by at least a
majority of all voting rights. All other actions relating to such
reclassified general common elements shall be regulated and
governed in like manner as other general common elements of the
condominium.
{ + (b) + } If a supplemental declaration and plat is
required for any action, the plat shall be executed by the
chairperson and secretary of the association and shall comply
with the requirements of this chapter as to a supplemental
declaration and the recording of plats.
(4) Title to any additional units created under subsection (3)
of this section shall automatically be vested in the association
upon the recording of a supplemental declaration and plat. The
board of directors acting on behalf of the association shall have
the power to hold, convey, lease, encumber or otherwise deal with
a unit or any interest therein in like manner as other property
owned by the association.
{ + (5) The county clerk may charge a fee for recording a
statement under this section according to provisions of ORS
205.320 (4). + }
SECTION 34. ORS 100.175 is amended to read:
100.175. (1) The declarant shall { + :
(a) Conduct a reserve study described in subsection (3) of this
section; and
(b) + } Establish a reserve account for replacement of those
common elements all or part of which will normally require
replacement in more than three and less than 30 years, for
exterior painting if the common elements include exterior painted
surfaces, and for such other items as may be required by the
declaration or bylaws. The reserve account need not include { + :
(A) + } { - Those - } Items that could reasonably be funded
from operating assessments { + ; or
(B) A reserve for limited common elements for which maintenance
and replacement are the responsibility of one or more unit owners
under the provisions of the declaration or bylaws + }.
(2) { + (a) + } The reserve account must be funded by
assessments against the individual { - unit assessed for
maintenance of items - } { + units for the purposes + } for
which the reserve account is being established.
{ + (b) + } The assessment under this subsection will accrue
from the time of the conveyance of the first individual unit
assessed { + as provided in ORS 100.530 + }. { - The declarant
may elect to defer payment of the accrued assessment for a unit
under this subsection until the time of conveyance of the unit.
However, election by the declarant to defer payment of accrued
assessment shall be limited to a period of three years from the
date the declaration is recorded. The books and records of the
association of unit owners shall reflect the amount owing from
the declarant for all reserve assessments. - }
{ - (3) The amount assessed shall take into account the
estimated remaining life of the items for which the reserve is
created and the current replacement cost of those items. - }
{ - (4) - } { + (3)(a) + } The reserve account shall be
established in the name of the association of unit owners that
will be responsible for administering the account and for making
periodic payments into { + the account. + } { - it. The amount
of the payments shall be adjusted at least annually to recognize
changes in current replacement costs over time. - }
{ + (b) The reserve portion of the initial assessment
determined by the declarant shall be based on the following:
(A) The reserve study described in paragraph (c) of this
subsection;
(B) In the case of a conversion condominium, the statement
described in ORS 100.655 (1)(g); or
(C) Other reliable information.
(c) + } The board of directors of the association annually
shall conduct a reserve study { - , - } or review and update an
existing study { - , of the common elements - } to determine
the reserve account requirements { - . A reserve account shall
be established for those items of the common elements all or part
of which will normally require replacement in more than three and
less than 30 years, for exterior painting if the common elements
include exterior painted surfaces, and for the maintenance,
repair or replacement of other items as may be required under the
declaration or bylaws or that the board of directors, in its
discretion, may deem appropriate. The reserve account need not
include items that could reasonably be funded from operating
assessments. - } { + and may:
(A) Adjust the amount of payments in accordance with the study
or review; and
(B) Provide for other reserve items that the board of
directors, in its discretion, may deem appropriate.
(d) + } The reserve study shall include:
{ - (a) - } { + (A) + } Identification of all items for
which reserves are to be established;
{ - (b) - } { + (B) + } The estimated remaining useful life
of each item as of the date of the reserve study;
{ - (c) - } { + (C) + } An estimated cost of maintenance,
repair or replacement of each item at the end of its useful life;
and
{ - (d) - } { + (D) + } A 30-year plan with regular and
adequate contributions, adjusted by estimated inflation and
interest earned on reserves, to meet the maintenance, repair and
replacement schedule.
{ - (5) - } { + (4)(a) + } If the declaration or bylaws
require a reserve account, the reserve study requirements of
subsection { - (4) - } { + (3) + } of this section first
apply to the association of a condominium recorded prior to
October 23, 1999 { - , upon receipt by the board of directors of
a written request from at least one owner or mortgagee of a unit
that a reserve study be conducted. - } { + :
(A) Upon adoption of a resolution by the board of directors in
accordance with the bylaws providing that the requirements of
subsection (3) of this section apply to the association; or
(B) Upon submission to the board of directors of a petition
signed by a majority of unit owners mandating that the
requirements of subsection (3) of this section apply to the
association.
(b) + } The reserve study shall be completed within one year of
the date of { - the request - } { + adoption of the
resolution or submission of the petition to the board of
directors + }.
{ - (6) - } { + (5)(a) Except as provided in paragraph (b)
of this subsection, + }the reserve account is to be used only
for
{ - maintenance, repair and replacement of common elements - }
{ + the purposes + } for which reserves have been established
and is to be kept separate from other funds. { - However, - }
{ +
(b) + } After the individual unit owners have assumed
administrative responsibility for the association under ORS
100.210, the board of directors may borrow funds from the reserve
account to meet high seasonal demands on the regular operating
funds or to meet { - other temporary - } { + unexpected
increases in + } expenses which will later be paid from
{ - special - } assessments { - or maintenance fees - } { +
if the board of directors has adopted a resolution, which may be
an annual continuing resolution, authorizing the borrowing of
funds. Not later than the adoption of the budget for the
following year, the board of directors shall adopt by resolution
a written payment plan providing for repayment of the borrowed
funds within a reasonable period + }.
{ - (7) - } { + (6) + } Restrictions on the use of the
reserve account do not prohibit its prudent investment subject to
any constraints on investment of association funds imposed by the
declaration, bylaws or rules of the association of unit owners.
{ - (8) - } { + (7) + } Assessments paid into the reserve
account are the property of the association of unit owners and
are not refundable to sellers of units.
{ + (8) In addition to the authority of the board of
directors under subsection (3)(c) of this section, + } following
turnover, the association may { - , - } { + :
(a) + } On an annual basis, elect not to fund the reserve
account described in subsection (1) of this section by unanimous
vote of the owners { + ; or
(b) Elect to reduce or increase future assessments for the
reserve account described in subsection (1) of this section by an
affirmative vote of at least 75 percent of the owners + }.
SECTION 35. ORS 100.185 is amended to read:
100.185. (1) The declarant shall expressly warrant against
defects in the plumbing, electrical, mechanical, structural, and
all other components of the newly constructed units and common
elements. Such warranty:
(a) Shall exist on a unit and the related limited common
elements for not less than one year from the date of delivery of
possession of that unit by the declarant to the first unit owner
other than the declarant;
(b) Shall exist on the general common elements for not less
than one year from the initial conveyance of title to a unit by
the declarant to a unit owner other than the declarant, or, in
the case of { - property developed in stages - } { + a staged
or a flexible condominium + }, for not less than one year from
such initial conveyance of title or completion of the
construction of the specific general common element, whichever is
later;
(c) Shall be contained in the contract or other agreement to
purchase;
(d) Shall be separate from, and in addition to, any warranties
provided by any other person;
(e) Shall be in lieu of any implied warranties by the declarant
against defects in the plumbing, electrical, mechanical,
structural or other components of any newly constructed unit or
common elements; and
(f) Shall name the association of unit owners as an express
beneficiary with regard to general common elements.
(2) A written claim reasonably specifying a breach of the
warranty on the unit and the related limited common elements must
be delivered to the declarant before the expiration of such
warranty. A written claim reasonably specifying a breach of the
warranty on the general common elements must be delivered to the
declarant within two years of expiration of such warranty, but
the claim must be for a defect existing prior to the expiration
of such warranty under this section. An action to enforce such
warranty shall not be commenced later than four years after
expiration of such warranty.
(3) For the purposes of this section, 'newly constructed units
and common elements' means:
(a) Units and related limited common elements:
(A) That have been substantially completed for less than three
years; and
(B) That have been occupied for less than 12 months.
(b) General common elements:
(A) That have been substantially completed for less than three
years; and
(B) That were constructed contemporaneously with units that
have been occupied for less than 12 months.
(4) The warranty required under subsection (1) of this section
is not required for consumer products as defined in 15 United
States Code 2301 (1).
SECTION 36. ORS 100.210 is amended to read:
100.210. (1) A turnover meeting shall be called by the
declarant within 90 days of the expiration of any period of
declarant control reserved in the declaration or bylaws under ORS
100.200. If no control has been reserved, the declarant shall
call the turnover meeting within 90 days of the earlier of:
(a) In a single stage condominium, three years from the date of
conveyance of the first unit to a person other than the declarant
or conveyance of 50 percent of the units.
(b) In a staged or flexible condominium, seven years from the
date of conveyance of the first unit to a person other than the
declarant or conveyance to persons other than the declarant of 50
percent of the total number of units which the declarant may
submit to the provisions of this chapter under ORS 100.125 or
100.150.
(2) The declarant shall give notice of the turnover meeting in
accordance with the bylaws of the condominium to each unit owner
at least { - seven - } { + 10 + } but not more than 50 days
prior to the meeting. The notice shall state the purpose of the
meeting and the time and place where it is to be held.
(3) If the meeting required under subsection (1) of this
section is not called by the declarant within the time specified,
the meeting may be called and notice given by a unit owner or any
first mortgagee of a unit.
(4) At the turnover meeting:
(a) The declarant shall relinquish control of the
administration of the association of unit owners and the unit
owners shall assume the control;
(b) The unit owners shall elect a board of directors in
accordance with the bylaws of the condominium; and
(c) The declarant shall deliver to the association the items
specified in subsection (5) of this section.
(5) At the turnover meeting the declarant shall deliver to the
association all property of the unit owners and the association
of unit owners held or controlled by the declarant including, but
not limited to, the following items, if applicable:
(a) The original or a photocopy of the recorded declaration and
bylaws of the condominium and any supplements and amendments
thereto.
(b) A copy of the articles of incorporation.
(c) The minute books, including all minutes, and other books
and records of the association.
(d) The reserve study { + , + } { - and all - } updates
described in ORS 100.175 { + and other sources of information
that serve as a basis for calculating reserves in accordance with
ORS 100.175 (3) + }.
(e) Any rules and regulations which have been promulgated.
(f) Resignations of officers and members of the board of
directors who are required to resign because of the expiration of
any period of declarant control reserved under ORS 100.200.
(g) A report of the present financial condition of the
association of unit owners. The report shall consist of a balance
sheet and an income and expense statement for the preceding
12-month period or the period following the recording of the
declaration, whichever period is less.
(h) Association funds or control thereof, including, but not
limited to, { + funds for reserve required under ORS 100.530
(3)(b) and + } any bank signature cards.
(i) All tangible personal property that is property of the
association and an inventory of such property.
(j) A copy of the following, if available:
(A) The as-built architectural, structural, engineering,
mechanical, electrical and plumbing plans.
(B) The original specifications indicating thereon all material
changes.
(C) The plans for underground site service, site grading,
drainage and landscaping together with cable television drawings.
(D) Any other plans and information relevant to future repair
or maintenance of the property.
(k) Insurance policies.
(L) Copies of any occupancy permits which have been issued for
the condominium.
(m) Any other permits issued by governmental bodies applicable
to the condominium in force or issued within one year prior to
the date the unit owners assume control of the administration of
the association of unit owners.
(n) A list of the general contractor and the subcontractors
responsible for construction or installation of the major
plumbing, electrical, mechanical and structural components of the
common elements.
(o) A roster of unit owners and their addresses and telephone
numbers, if known, as shown on the records of the declarant.
(p) Leases of the common elements and any other leases to which
the association is a party.
(q) Employment or service contracts in which the association is
one of the contracting parties or service contracts in which the
association or the unit owners have an obligation or
responsibility, directly or indirectly, to pay some or all of the
fee or charge of the person performing the service.
(r) Any other contracts to which the association of unit owners
is a party.
(6) In order to facilitate an orderly transition, during the
three-month period following the turnover meeting, the declarant
or an informed representative shall be available to meet with the
board of directors on at least three mutually acceptable dates to
review the documents delivered under subsection (5) of this
section.
(7) If the declarant has complied with this section, unless the
declarant otherwise has sufficient voting rights as a unit owner
to control the association, the declarant shall not be
responsible for the failure of the unit owners to comply with
subsection (4) of this section and the declarant shall be
relieved of any further responsibility for the administration of
the association except as a unit owner of any unsold unit.
SECTION 37. ORS 100.250 is amended to read:
100.250. (1) The following shall be delivered to the Real
Estate Agency for filing on behalf of the association in
accordance with ORS 100.260 (5):
(a) A Condominium Information Report described in ORS 100.260
(1) by the declarant not later than 90 days after the declaration
is recorded under ORS 100.100 or by the board of directors if
required under ORS 100.275.
(b) The Annual Report described in ORS 100.260 (2) by the
declarant until the turnover meeting and the board of directors
thereafter every year not later than the report date which shall
be the anniversary date of filing the Condominium Information
Report.
(c) An amendment to the reports required under this subsection
by the declarant until the turnover meeting and the board of
directors thereafter, within 30 days after there is a change in
the information contained in a report.
(2) The Real Estate Agency shall collect the following fees for
the documents delivered for filing:
_________________________________________________________________
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
Document Fee
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
(a)Condominium Information
Report { -
$ 40 - }
{ +
$100 + }
(b)Annual Report { -
$ 45 - }
{ +
$ 25 + }
(c)Amendment { -
$ 45 - }
{ +
$ 75 + }
(d)Application for
Termination Statement { -
$ 45 - }
{ +
$ 75 + }
(e)Statement of Resignation{ -
$ 45 - }
{ +
$ 75 + }
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
_________________________________________________________________
(3) Any fee paid under subsection (2) of this section or ORS
100.275 may be a common expense of the condominium.
SECTION 38. ORS 100.260 is amended to read:
100.260. (1) The Condominium Information Report required under
ORS 100.250 (1)(a) shall set forth:
(a) The name of the association;
(b) The name of the condominium and the county in which the
condominium is located;
(c) The mailing address, including the street and number, if
any, and county of the association;
(d) The date the condominium declaration was recorded and the
recording index numbers;
(e) The name and residence or business address, including the
street and number, of the person designated as agent to receive
service of process in cases provided in ORS 100.550 (1) and any
other legal proceeding relating to the condominium or
association; and
(f) The number and type of units as follows:
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
No.___
Living Units
No.___
Commercial/Office Units
No.___
Other (describe) _____
________________
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
(2) The Annual Report required under ORS 100.250 (1)(b) shall
set forth:
(a) The information required under subsection (1)(a), (b), (c)
and (e) of this section;
(b) The names and addresses of the chairman and secretary of
the association; and
(c) If the designated agent is changed, a statement that the
new agent has consented to the appointment.
(3) The amendment required under ORS 100.250 (1)(c) shall set
forth:
(a) The name of the association as shown on the current records
of the Real Estate Agency;
(b) The name of the condominium and county in which the
condominium is located;
(c) A statement of the information as changed; and
(d) If the current designated agent is to be changed, the name
of the new designated agent and residence or business address,
including the street and number, and a statement that the new
agent has consented to the appointment.
(4) The filing by the Real Estate Agency of an amendment which
changes the designated agent shall terminate the existing
designated agent on the effective date of the filing and
establish the newly appointed designated agent as that of the
association.
(5) The reports and amendment described in this section and an
application for termination described in ORS 100.280 shall be
made on forms prescribed and furnished by the Real Estate Agency
and must be accompanied by { - one exact or conformed copy
and - } the correct filing fee and shall:
(a) Contain information current as of 30 days before delivery
for filing;
(b) Be executed by the designated agent and until the turnover
meeting by the declarant and thereafter by the chairman or
secretary of the association;
(c) State beneath or opposite the signature the name of the
person and the capacity in which the person signs; and
(d) Contain any additional identifying information that the
Real Estate Agency may require by rule.
SECTION 39. ORS 100.405 is amended to read:
100.405. (1)(a) An association of unit owners shall be
organized to serve as a means through which the unit owners may
take action with regard to the administration, management and
operation of the condominium. The association shall be organized
as a corporation for profit or nonprofit corporation or as an
unincorporated association. If the association is incorporated,
the name of the association shall include the complete name of
the condominium.
(b) Unless otherwise provided in the declaration or bylaws, an
unincorporated association may be incorporated if such action is
approved by a majority of unit owners in person, by written
ballot or by proxy at a meeting at which a quorum is present.
(2) Membership in the association of unit owners shall be
limited to unit owners.
(3) The affairs of the association shall be governed by a board
of directors as provided for in the bylaws adopted under ORS
100.410.
(4) Subject to the provisions of the condominium's declaration
and bylaws, and whether or not the association is unincorporated,
the association may:
(a) Adopt and amend bylaws and rules and regulations;
(b) Adopt and amend budgets for revenues, expenditures and
reserves and levy and collect assessments for common expenses
from unit owners;
(c) Hire and terminate managing agents and other employees,
agents and independent contractors;
(d) Defend against any claims, proceedings or actions brought
against it;
(e) { + Subject to subsection (11) of this section, + }
initiate or intervene in litigation or administrative proceedings
in its own name, and without joining the individual unit owners,
in the following:
(A) Matters relating to the collection of assessments and the
enforcement of governing documents;
(B) Matters arising out of contracts to which the association
is a party;
(C) Actions seeking equitable or other nonmonetary relief
regarding matters that affect the common interests of the unit
owners, including but not limited to the abatement of nuisance;
(D) Matters relating to or affecting common elements, including
but not limited to actions for damage, destruction, impairment or
loss of use of any common element;
(E) Matters relating to or affecting the units or interests of
unit owners including but not limited to damage, destruction,
impairment or loss of use of a unit or portion thereof, if:
(i) Resulting from a nuisance or a defect in or damage to a
common element; or
(ii) Required to facilitate repair to any common element; and
(F) Any other matter to which the association has standing
under law or pursuant to the declaration, bylaws or any articles
of incorporation;
(f) Make contracts and incur liabilities;
(g) Regulate the use, maintenance, repair, replacement and
modification of common elements;
(h) Cause additional improvement to be made as a part of the
common elements;
(i) Acquire by purchase, lease, devise, gift or voluntary grant
real or personal property or any interest therein and take, hold,
possess and dispose of real or personal property or any interest
therein;
(j) Impose and receive any payments, fees or charges for the
use, rental or operation of the common elements;
(k) Impose charges for late payments of assessments, attorney
fees for collection of assessments and, after giving notice and
an opportunity to be heard, levy reasonable fines for violations
of the declaration, bylaws and rules and regulations of the
association { + if the charge imposed or fine levied is based on
a schedule contained in the declaration or bylaws, or an
amendment to either that is delivered to each unit, mailed to the
mailing address of each unit or mailed to the mailing addresses
designated in writing by the owners, or based on a resolution
adopted by the board of directors or the association that is
delivered to each unit, mailed to the mailing address of each
unit or mailed to the mailing addresses designated by the owners
in writing + };
(L) Adopt rules regarding the termination of utility services
paid for out of assessments of the association and access to and
use of recreational and service facilities available to unit
owners and, after giving { + written + } notice and an
opportunity to be heard, terminate the rights of any owners to
receive such benefits or services until the correction of any
violation covered by such rule has occurred;
(m) Impose reasonable charges for the preparation and
recordation of amendments to the declaration or statements of
assessments;
(n) Assign its right to future income, including the right to
receive common expense assessments;
(o) Provide for the indemnification of its officers and
executive board, as may be limited by ORS 61.218 (3)(d) (1987
Replacement Part), and maintain directors' and officers'
liability insurance;
(p) Exercise any other powers conferred by the declaration or
bylaws;
(q) Exercise all other powers that may be exercised in this
state by any such association; and
(r) Exercise any other powers determined by the association to
be necessary and proper for the governance and operation of the
association.
(5) Subject to subsection (6) of this section, unless expressly
limited or prohibited by the declaration, the association has the
authority to grant, execute, acknowledge, deliver and record on
behalf of the unit owners leases, easements, rights of way,
licenses and other similar interests affecting the general common
elements and consent to vacation of roadways within and adjacent
to the condominium.
(6) The granting of a lease, easement, right of way, license or
other similar interest in excess of two years or consent pursuant
to subsection (5) of this section shall be first approved by at
least 75 percent of { - the unit - } owners. Unless the
declaration otherwise provides, a grant of any such interest
affecting the general common elements for a term of two years or
less shall not be considered the granting of an interest for
which approval by the unit owners is required under this
subsection.
(7) The instrument granting an interest or consent pursuant to
subsection (5) of this section shall be executed by the
chairperson and secretary of the association and acknowledged in
the manner provided for acknowledgment of such instruments by
such officers and shall state that such grant or consent was
approved, if appropriate, by at least 75 percent of { - the
unit - } owners.
(8) Unless expressly prohibited by the declaration, any action
permitted under subsections (5) and (6) of this section regarding
a general common element may be taken with respect to any limited
common element, provided that the owner of the unit to which the
use of the limited common element is reserved and the holder of
any mortgage or trust deed affecting the unit consent to the
action and also execute an instrument as provided under
subsection (7) of this section.
(9) Except as otherwise provided in the association's
declaration or bylaws, the board of directors of the association
may modify, close, remove, eliminate or discontinue the use of a
general common element facility or improvement or portion of the
common element landscaping, regardless of whether such facility,
improvement or landscaping is mentioned in the declaration or
shown on the plat provided that:
(a) Nothing in this subsection shall be construed as limiting
the authority of the board of directors, in its discretion, to
seek approval of such modification, closure, removal, elimination
or discontinuance by the unit owners; and
(b) Modification, closure, removal, elimination or
discontinuance other than on a temporary basis of any swimming
pool, spa or recreation or community building must be approved by
at least a majority of the unit owners voting on such matter at a
meeting or { + by written + } ballot { - meeting - } held in
accordance with the declaration { + , + } { - and - }
bylaws { + or ORS 100.425 + }.
(10)(a) A permit or authorization issued by the board of
directors pursuant to authority granted to the board under law,
the declaration or the bylaws, may be recorded in the deed
records of the county where the condominium is located. An
instrument recorded under this subsection shall:
(A) Include the name of the condominium and a reference to
where the declaration and any applicable supplemental
declarations are recorded;
(B) Identify, by the designations stated in the declaration or
applicable supplemental declaration, all affected units and
common elements;
(C) Include such other information and signatures as may be
required by law, under the declaration or bylaws or as the board
of directors may desire; and
(D) Be executed by the chairperson and secretary of the
association and acknowledged in the manner provided for
acknowledgment of such instruments by the officers.
(b) The board of directors may record an amendment,
modification, termination or other instrument relating to the
permit or authorization described in this subsection. Any such
instrument shall include a reference to the location of the
recorded instrument and be executed by the chairperson and
secretary of the association and acknowledged in the manner
provided for acknowledgment of such instruments.
{ + (11)(a) Subject to paragraph (f) of this subsection,
before initiating litigation or an administrative proceeding in
which the association and an owner have an adversarial
relationship, the party that intends to initiate litigation or an
administrative proceeding shall offer to use any dispute
resolution program available within the county in which the
condominium is located that is in substantial compliance with the
standards and guidelines adopted under ORS 36.175. The written
offer must be hand-delivered or mailed by certified mail, return
receipt requested, to the address, contained in the records of
the association, for the other party.
(b) If the party receiving the offer does not accept the offer
within 10 days after receipt by written notice hand-delivered or
mailed by certified mail, return receipt requested, to the
address, contained in the records of the association, for the
other party, the initiating party may commence the litigation or
the administrative proceeding. The notice of acceptance of the
offer to participate in the program must contain the name,
address and telephone number of the body administering the
dispute resolution program.
(c) If a qualified dispute resolution program exists within the
county in which the condominium is located and an offer to use
the program is not made as required under paragraph (a) of this
subsection, litigation or an administrative proceeding may be
stayed for 30 days upon a motion of the noninitiating party. If
the litigation or administrative action is stayed under this
paragraph, both parties shall participate in the dispute
resolution process.
(d) Unless a stay has been granted under paragraph (c) of this
subsection, if the dispute resolution process is not completed
within 30 days after receipt of the initial offer, the initiating
party may commence litigation or an administrative proceeding
without regard to whether the dispute resolution is completed.
(e) Once made, the decision of the court or administrative body
arising from litigation or an administrative proceeding may not
be set aside on the grounds that an offer to use a dispute
resolution program was not made.
(f) The requirements of this subsection do not apply to
circumstances in which irreparable harm to a party will occur due
to delay or to litigation or an administrative proceeding
initiated to collect assessments, other than assessments
attributable to fines. + }
SECTION 40. ORS 100.410 is amended to read:
100.410. (1) The declarant shall adopt on behalf of the
association the initial bylaws which shall govern the
administration of the condominium. The bylaws shall be recorded
simultaneously with the declaration { - of the property to
which the bylaws relate - } { + as an exhibit or as a separate
instrument + }. { +
(2) Unless otherwise provided in the declaration or bylaws,
amendments to the bylaws may be proposed by a majority of the
board of directors or by at least 30 percent of the owners. + }
{ - (2) - } { + (3) + } Subject to subsections
{ - (3) - } { + (4) + } and { - (4) - } { + (5) + } of
this section { + and ORS 100.415 (20) + }, an amendment of the
bylaws
{ - shall - } { + is + } not { - be - } effective unless
approved by at least a majority of the unit owners and until a
copy of { - the bylaws as amended or - } the amendment
{ - thereto - } , certified by the { - chairman - } { +
chairperson + } and secretary of the association of unit owners
as being adopted in accordance with the bylaws and the provisions
of this section, is recorded.
{ - (3) - } { + (4) + } In condominiums which are
exclusively residential { - , - } { + :
(a) + } The bylaws may not provide that greater than a majority
is required to amend the bylaws except for amendments relating to
age restrictions, pet restrictions, limitations on the number of
persons who may occupy units and limitations on the rental or
leasing of units.
{ + (b) An amendment relating to a matter specified in
paragraph (a) of this subsection is not effective unless approved
by at least 75 percent of the owners or a greater percentage
specified in the bylaws. + }
{ - (4) - } { + (5) + } The bylaws may not be amended to
limit or diminish any special declarant right without the consent
of the declarant. However, the declarant may waive the
declarant's right of consent.
{ - (5) - } { + (6) + } For five years after recording the
initial bylaws, before any amended bylaws or amendment to a bylaw
may be recorded, it must be approved by the Real Estate
Commissioner. The commissioner shall approve such amendment if
the requirements of ORS 100.415 and this section have been
satisfied.
{ - (6) - } { + (7) + } Before the commissioner approves
amended bylaws or an amendment to a bylaw under this section, the
person submitting the amended bylaws or amendment to a bylaw
shall pay to the commissioner the fee provided by ORS 100.670.
SECTION 41. ORS 100.415 is amended to read:
100.415. The bylaws shall { + include a reference to the
declaration to which the bylaws relate and shall + } provide for:
(1) The organization of the association of unit owners in
accordance with ORS 100.405, when the initial meeting shall be
held and the method of calling that meeting.
(2) If required under ORS 100.205, the formation of a
transitional committee in accordance with such section.
(3) The turnover meeting required under ORS 100.210, including
when the meeting shall be called, the method of calling the
meeting, the right of a unit owner under ORS 100.210 (3) to call
the meeting and a statement of the purpose of the meeting.
(4) { + (a) + } The method of calling the annual meeting and
all other meetings of the unit owners in accordance with ORS
100.407 { - , - } { + ; + } and
{ + (b) + } The percentage { + of owners + } that
{ - shall constitute - } { + constitutes + }a quorum.
(5) { + (a) + } The election from among the unit owners of a
board of directors and the number of persons constituting the
board;
{ + (b) The terms of office of directors;
(c) + }The powers and duties of the board;
{ + (d) + } The compensation, if any, of the directors;
{ - and - }
{ + (e) + } The method of removal from office of
directors { + ; and
(f) The method of filling vacancies on the board + }.
(6) The method of calling meetings of the board of directors in
accordance with ORS 100.420 and a statement that all meetings of
the board of directors of the association of unit owners shall be
open to unit owners.
(7) The election of a chairperson, a secretary { + , + }
{ - and - } a treasurer { + and any other officers of the
association + }.
(8) The preparation and adoption of a budget in accordance with
ORS 100.412.
(9) { + (a) + } The maintenance, { - upkeep and - } repair
{ + and replacement + } of the common elements and association
property { + ; + } { - and - }
{ + (b) + } Payment for the expense { - thereof
including - } { + of maintenance, repair and replacement of
common elements and association property and other expenses of
the condominium in accordance with ORS 100.530; and
(c) + } The method of approving payment vouchers.
(10) The employment of personnel necessary for the maintenance
{ - , upkeep - } and repair of the common elements.
(11) The manner of collecting { + assessments + } from the
unit owners { - their share of the common expenses - } .
(12) Insurance coverage in accordance with ORS 100.435.
(13) The preparation and distribution of the annual financial
statement in accordance with ORS 100.480.
(14) The reserve account and the preparation, review and update
of the reserve study required under ORS 100.175.
(15) The filing of an Annual Report and any amendment with the
Real Estate Agency in accordance with ORS 100.250.
(16) The method of adopting and of amending administrative
rules and regulations governing the details of the operation
{ + of the condominium + } and use of the common elements.
(17) { - Such - } Restrictions on and requirements
respecting the enjoyment and maintenance of the units and the
common elements as are designed to prevent unreasonable
interference with the use of their respective units and of the
common elements by the several unit owners.
(18) Any restrictions on use or occupancy of units. Any such
restrictions created by documents other than the bylaws may be
incorporated by reference in the bylaws to the official records
of the county in which the property is located.
(19) The method of amending the bylaws { - subject to - }
{ + in accordance with + } ORS 100.410.
(20) Any other details regarding the property that the
declarant considers desirable. However, if a provision required
to be in the declaration under ORS 100.105 is included in the
bylaws, the voting requirements for amending the declaration
shall also govern the amendment of the provision in the bylaws.
(21) In the event additional units are proposed to be annexed
or created pursuant to ORS 100.125 or 100.150, the method of
apportioning common expenses in the event new units are added
during the course of the fiscal year.
SECTION 42. ORS 100.417 is amended to read:
100.417. (1) The board of directors of an association of unit
owners may act on behalf of the association except as limited by
the declaration or bylaws. In the performance of their duties,
officers and members of the board of directors shall exercise the
care required of fiduciaries.
(2) Unless otherwise provided in the bylaws, the board of
directors of an association may fill vacancies in its membership
for the unexpired portion of any term.
(3) At least annually, the board of directors of an association
shall review the insurance coverage of the association.
(4) The board of directors of the association annually shall
cause to be filed the necessary income tax returns for the
association.
{ + (5) The board of directors of the association may record
a statement of association information as provided in ORS
94.667. + }
{ - (5) - } { + (6) + } Unless otherwise provided in the
declaration or bylaws, the unit owners may remove any member of
the board of directors of the association, other than members
appointed by the declarant or persons who are ex officio
directors, with or without cause, by a majority vote of all
owners present and entitled to vote at any meeting of the owners
at which a quorum is present. No removal of a member of the board
of directors is effective unless the matter of removal is an item
on the agenda and stated in the notice for the meeting required
under ORS 100.407.
SECTION 43. ORS 100.420 is amended to read:
100.420. (1) { + (a) + } All meetings of the board of directors
of the association of unit owners shall be open to unit owners
except that, in the discretion of the board, the following
matters may be considered in executive session:
{ - (a) - } { + (A) + } Consultation with legal counsel
concerning the rights and duties of the association regarding
existing or potential litigation, or criminal matters;
{ - (b) - } { + (B) + } Personnel matters, including salary
negotiations and employee discipline; and
{ - (c) - } { + (C) + } The negotiation of contracts with
third parties.
{ + (b) Except in the case of an emergency, the board of
directors of an association shall vote in an open meeting whether
to meet in executive session. If the board of directors votes to
meet in executive session, the presiding officer of the board of
directors shall state the general nature of the action to be
considered and, as precisely as possible, when and under what
circumstances the deliberations can be disclosed to owners.
(c) The meeting and notice requirements in this section may not
be circumvented by chance or social meetings or by any other
means. + }
(2) Except as provided in subsection (3) of this section, board
of directors' meetings may be conducted by telephonic
communication.
(3) In condominiums where the majority of the units are the
principal residences of the occupants:
(a) For other than emergency meetings, notice of board of
directors' meetings shall be posted at a place or places on the
property at least three days prior to the meeting or notice shall
be provided by a method otherwise reasonably calculated to inform
unit owners of such meetings.
(b) Only emergency meetings of the board of directors may be
conducted by telephonic communication.
(4) Subsection (3)(a) of this section first applies to property
submitted to the provisions of this chapter prior to October 3,
1979, upon receipt by the board of directors of the association
of unit owners of a written request from at least one unit owner
that notice of board of directors meetings be given in accordance
with subsection (3)(a) of this section.
SECTION 44. ORS 100.425 is amended to read:
100.425. (1) Unless prohibited or limited by the declaration,
articles of incorporation or bylaws, any action that may be taken
at any annual, regular or special meeting of the association of
unit owners may be taken without a meeting if the association
delivers a written ballot to every association member that is
entitled to vote on the matter.
(2) { + (a) + } A written ballot shall set forth each proposed
action and provide an opportunity to vote for or against each
proposed action.
{ + (b) The board of directors must provide owners with at
least 10 days' notice before written ballots are mailed or
otherwise delivered. If, at least three days before written
ballots are scheduled to be mailed or otherwise distributed, at
least 10 percent of the owners petition the board of directors
requesting secrecy procedures, a written ballot must be
accompanied by a secrecy envelope, a return identification
envelope to be signed by the owner and instructions for marking
and returning the ballot. Notwithstanding the applicable
provisions of subsection (3) or (4) of this section, written
ballots that are returned in secrecy envelopes may not be
examined or counted before the deadline for returning ballots has
passed. + }
(3) Matters that may be voted on by written ballot shall be
deemed approved or rejected as follows:
(a) If approval of a proposed action otherwise would require a
meeting at which a certain quorum must be present and at which a
certain percentage of total votes cast is required to authorize
the action, the proposal shall be deemed to be approved when the
date for return of ballots has passed, a quorum of unit owners
has voted and the required percentage of approving votes has been
received. Otherwise, the proposal shall be deemed to be rejected;
and
(b) If approval of a proposed action otherwise would require a
meeting at which a specified percentage of unit owners must
authorize the action, the proposal shall be deemed to be approved
when the percentage of total votes cast in favor of the proposal
equals or exceeds such required percentage. The proposal shall be
deemed to be rejected when the number of votes cast in opposition
renders approval impossible or when both the date for return of
ballots has passed and such required percentage has not been met.
Unless otherwise prohibited by the declaration, articles of
incorporation or bylaws, the votes may be counted from time to
time before the final return date to determine whether the
proposal has passed or failed by the votes already cast on the
date they are counted.
(4) All solicitations for votes by written ballot shall state
the following:
(a) If approval of a proposal by written ballot requires that
the total number of votes cast equal or exceed a certain quorum
requirement, the number of responses needed to meet such quorum
requirement; and
(b) If approval of a proposal by written ballot requires that a
certain percentage of total votes cast approve the proposal, the
required percentage of total votes needed for approval.
(5) All solicitations for votes by written ballot shall specify
the period during which the association shall accept written
ballots for counting, which period shall end on the earliest of
the following dates:
(a) If approval of a proposed action by written ballot requires
that a certain percentage of the unit owners approve the
proposal, the date on which the association has received a
sufficient number of approving ballots;
(b) If approval of a proposed action by written ballot requires
that a certain percentage of the unit owners approve the
proposal, the date on which the association has received a
sufficient number of disapproving ballots to render approval
impossible; and
(c) In all cases, a date certain on which all ballots must be
returned to be counted.
(6) Except as otherwise provided in the declaration, articles
of incorporation, or bylaws, a written ballot may not be revoked.
SECTION 45. ORS 100.445 is amended to read:
100.445. Where a leasehold interest is submitted to the
provisions of this chapter, the master lease shall { + :
(1) + } Contain independent default clauses, the effect of
which shall be that a unit owner cannot be evicted because the
board of directors of the association of unit owners has
defaulted so long as the unit owner has paid the pro rata share
of the unit owner of the funds necessary to correct the default
or because another unit owner has defaulted.
{ + (2) Contain the procedure for the submission of the fee
simple interest in the property to the condominium if the lease
includes an option for the unit owners to purchase the fee simple
interest.
(3) Be recorded in the office of the recording officer before
the declaration for the property is recorded in accordance with
ORS 100.100. + }
SECTION 46. ORS 100.470 is amended to read:
100.470. Unless otherwise provided in the declaration or
bylaws, in any suit or action brought by an association of unit
owners to foreclose its lien { - , - } { + or to + } collect
delinquent assessments or { + in any suit or action brought by
declarant, the association or any owner or class of owners + } to
enforce compliance with the terms and provisions of the Oregon
Condominium Act, the condominium declaration or bylaws, including
all amendments and supplements thereto or any rules or
regulations adopted by the association, the prevailing party
shall be entitled to recover reasonable attorney fees therein and
in any appeal therefrom.
SECTION 47. ORS 100.480 is amended to read:
100.480. (1) The association of unit owners shall retain { +
within this state + } the documents, information and records
delivered to the association under ORS 100.210.
(2) The association of unit owners shall keep financial records
sufficient for proper accounting purposes. All assessments shall
be deposited in a separate bank account { + , located within this
state, + } in the name of the association. All expenses of the
association shall be paid from the association bank account.
(3) Within 90 days after the end of the fiscal year, the board
of directors shall distribute to each unit owner a copy of the
annual financial statement consisting of a balance sheet and
income and expense statement for the preceding fiscal year.
{ + (4)(a) The association shall provide, within 10 business
days of receipt of a written request from an owner, a written
statement that provides:
(A) The amount of assessments due from the owner and unpaid at
the time the request was received, including:
(i) Regular and special assessments;
(ii) Fines and other charges;
(iii) Accrued interest; and
(iv) Late payment charges.
(B) The percentage rate at which interest accrues on
assessments that are not paid when due.
(C) The percentage rate used to calculate the charges for late
payment or the amount of a fixed charge for late payment.
(b) The association is not required to comply with paragraph
(a) of this subsection if the association has commenced
litigation by filing a complaint against the owner and the
litigation is pending when the statement would otherwise be
due. + }
{ - (4) - } { + (5) + } The documents, information and
records described in subsections (1) to (3) of this section and
all other records of the association of unit owners shall be
{ + located within this state and shall be + } reasonably
available for examination by a unit owner and any mortgagee of a
unit. Upon the written request of an owner or mortgagee of a
unit, the association shall make the documents, information and
records described in subsections (1) to (3) of this section and
other records available for duplication during reasonable hours.
The association of unit owners shall maintain a copy, suitable
for the purpose of duplication, of the following:
(a) The declaration, bylaws, association rules and regulations
and any amendments or supplements thereto;
(b) The most recent annual financial statement prepared in
accordance with subsection (3) of this section; and
(c) The current operating budget of the association.
{ - (5) - } { + (6) + } Upon the written request of a
prospective purchaser, the association of unit owners shall make
available for examination and duplication during reasonable hours
the documents and information specified in subsection
{ - (4) - } { + (5) + } of this section.
{ - (6) - } { + (7) + } The association of unit owners may
charge a reasonable fee for furnishing copies of any documents,
information or records described in this section. The fee may
include reasonable personnel costs incurred to furnish the
information.
{ - (7) - } { + (8) + } Subsection (3) of this section
first applies to property submitted to the provisions of this
chapter before January 1, 1982, when the board of directors of
the association of unit owners receives a written request from at
least one unit owner that a copy of the annual financial
statement be distributed in accordance with subsection (3) of
this section.
SECTION 48. ORS 100.490 is amended to read:
100.490. (1) At least 10 days prior to instituting any
litigation or administrative proceeding to recover damages under
ORS 100.405 (4)(e)(E), the association of unit owners shall
provide written notice to each affected owner of the
association's intent to seek damages on behalf of the owner. The
notice shall, at a minimum:
(a) { + Be mailed to the mailing address of each unit or to
the mailing addresses designated by the owners in writing to the
association;
(b) + }Inform each owner of the general nature of the
litigation or proceeding;
{ - (b) - } { + (c) + } Describe the specific nature of the
damages to be sought on the owner's behalf;
{ - (c) - } { + (d) + } Set forth the terms under which the
association is willing to seek damages on the owner's behalf,
including any mechanism proposed for the determination and
distribution of any damages recovered;
{ - (d) - } { + (e) + } Inform each owner of the owner's
right not to have the damages sought on the owner's behalf and
specify the procedure for exercising the right; and
{ - (e) - } { + (f) + } Inform the owner that exercising
the owner's right not to have damages sought on the owner's
behalf:
(A) Relieves the association of its duty to reimburse or
indemnify the owner for the damages;
(B) Does not relieve the owner from the owner's obligation to
pay dues or assessments relating to the litigation or proceeding;
(C) Does not impair any easement owned or possessed by the
association; and
(D) Does not interfere with the association's right to make
repairs to common elements.
(2) Within 10 days of mailing the notice described in this
section, any owner may request in writing that the association
not seek damages on the owner's behalf. If an owner makes such a
request, the association shall not make or continue any claim or
action for damages with regard to the objecting owner's unit or
interest and shall be relieved of any duty to reimburse or
indemnify the owner for damages under the litigation or
proceeding.
SECTION 49. ORS 100.520 is amended to read:
100.520. { + (1) Except as otherwise provided in the
declaration, each unit shall have an easement through each other
unit and through the common elements for utility, wiring, heat,
plumbing and other service elements, and for reasonable access
required to effectuate and continue proper operation of the
condominium. + }
{ - (1) - } { + (2) + } Each unit and all common elements
shall have an easement over all adjoining units and common
elements for the purpose of accommodating any present or future
encroachment as a result of engineering errors, construction,
reconstruction, repairs, settlement, shifting, or movement of any
portion of the property, or any other similar cause, and any
encroachment due to building overhang or projection. There shall
be valid easements for the maintenance of the encroaching units
and common elements so long as the encroachments shall exist, and
except as otherwise provided in subsection { - (2) - }
{ + (3) + } of this section, the rights and obligations of
owners shall not be altered in any way by the encroachment.
{ - (2) - } { + (3) + } The easement described under
subsection { - (1) - } { + (2) + } of this section does not
relieve a unit owner of liability in case of willful misconduct
of a unit owner or relieve a declarant or any contractor,
subcontractor or materialman of liability for failure to adhere
to the plat and any floor plans recorded pursuant to ORS 100.115.
{ - (3) - } { + (4) + } The encroachments described in
subsection { - (1) - } { + (2) + } of this section shall not
be construed to be encumbrances affecting the marketability of
title to any unit.
SECTION 50. ORS 100.525 is amended to read:
100.525. { + (1) + } Unless otherwise provided in the
declaration, each unit shall be entitled to one vote.
{ + (2) Unless otherwise provided in the declaration or
bylaws:
(a) An executor, administrator, guardian or trustee may vote,
in person or by proxy, at a meeting of the association with
respect to a unit owned or held in a fiduciary capacity, whether
or not the same has been transferred to the fiduciary, if the
person satisfies the secretary that the person is the executor,
administrator, guardian or trustee holding the unit in a
fiduciary capacity.
(b) Whenever a unit is owned by two or more persons jointly,
according to the records of the association:
(A) Except as provided in this subsection, the vote or proxy of
the unit may be exercised by any one of the owners present, in
the absence of protest by a co-owner. In the event of a
disagreement among the co-owners, the vote of the unit shall be
disregarded completely in determining the proportion of votes
given with respect to the matter.
(B) A valid court order may establish the right of co-owners'
authority to vote. + }
SECTION 51. ORS 100.530 is amended to read:
100.530. (1) Unless otherwise provided in the declaration, the
common profits of the property shall be distributed among, and
the common expenses shall be charged to, the unit owners
according to the allocation of undivided interest of each unit in
the common elements.
(2) No unit owner by the owner's own action may claim exemption
from liability for contribution towards the common expenses by
waiver by the owner of the use or enjoyment of any of the common
elements or by abandonment by the owner of the owner's unit. An
owner may not claim an offset against an assessment for failure
of the association to perform its obligations.
(3) Subject to subsection (4) of this section { - , from the
date of conveyance of the first unit, the declarant shall - } :
(a) { + The declarant shall + } pay assessments due for
operating expenses on all unsold units { + :
(A) From the date of conveyance of the first unit in the
condominium; and
(B) For a staged or flexible condominium, from the date of
recording the applicable supplemental declaration and
supplemental plat recorded pursuant to ORS 100.120 + } { - ;
and - } { + . + }
(b) { + From the date of conveyance of the first unit in the
condominium, the declarant shall + } pay assessments due for
reserves on all unsold units { - , or, at the declarant's
option, pay or require the unit owner to pay all accrued reserve
assessments against the unit at the time of the initial sale to
the unit owner - } .
{ + (c) The declarant may defer payment of accrued
assessments for reserves required under ORS 100.175 for a unit
until the date the unit is conveyed. However, the declarant may
not defer payment of accrued assessments for reserves:
(A) Beyond the date of the turnover meeting provided for in the
bylaws in accordance with ORS 100.210; or
(B) If a turnover meeting is not held, the date the owners
assume administrative control of the association.
(d) Failure of the declarant to deposit the balance due within
30 days after the due date constitutes a violation under ORS
100.545.
(e) The books and records of the association shall reflect the
amount the declarant owes for all reserve account
assessments. + }
(4)(a) The association shall not assess units owned by the
declarant for additional capital improvements without the written
consent of the declarant as long as:
(A) In a single stage condominium, the declarant owns more than
two units or five percent of the units, whichever is greater.
(B) In a staged or flexible condominium, the declarant owns
more than two units or five percent of the units submitted to the
provisions of this chapter, whichever is greater, or the
termination date has not expired.
(b) The declarant may waive the declarant's right of consent
provided in paragraph (a) of this subsection.
(5) { + (a) + } Except with respect to { + assessments for + }
reserves required by ORS 100.175, a declaration or bylaws may
provide that { + , until the turnover meeting, + } the declarant
may elect to defer commencement of all or part of common expense
assessments as to all units in a condominium or as to all units
in a stage of a condominium { - and - } { + or as to all
units created by a supplemental declaration and plat pursuant to
ORS 100.150.
(b) + } If a declarant so elects to defer commencement of all
or part of common expense assessments, declarant shall pay as
they accrue and be responsible for all or part of the common
expenses attributable to the condominium or attributable to the
stage of the condominium { + or the units and common elements
created by such supplemental declaration and plat + } for which
assessments have been deferred, until assessments commence for
all common expenses.
{ + (c) + } The declarant shall give not less than 10 days'
written notice to all affected unit owners prior to the
commencement of common expense assessments if such a deferral
occurs.
SECTION 52. ORS 100.555 is amended to read:
100.555. (1) { + (a) + } Each unit with its allocation of
undivided interest in the common elements shall be considered a
parcel of real property, whether { - leased or in - } fee
simple { + , leasehold, easement or other interest or combination
thereof + }, subject to separate assessment and taxation by any
taxing unit in like manner as other parcels of real property. A
unit { - based upon - } { + created by + } a declaration
{ - filed by the owner of a leasehold estate - } { + or
supplemental declaration recorded with the recording officer
under ORS 100.100 or 100.120 + } shall be assessed in the name of
the unit owner { + . + } { - and not in the name of the owner
of the fee or of the leasehold estate upon which the declaration
is based. Neither the building, the property nor any of - }
{ + (b) + } The common elements { - shall - } { + may
not + } be considered a separate parcel for purposes of taxation.
(2) In determining the real market value of a unit with its
undivided interest in the common elements, the county assessor
may use the allocation of undivided interest in the common
elements appertaining to a unit as expressed in the declaration.
Determination of real market value of a unit based upon a
leasehold estate shall be the same as a unit in fee simple. There
shall be no diminution of value by reason of the term of said
lease.
(3) Exemptions from executions and real property taxes apply to
the owner of each unit or to the individual units, as the case
may be.
(4) The Department of Revenue shall have the authority to make
rules and regulations prescribing methods best calculated to
secure uniformity according to law in the appraisal and
assessment of units constituting part of a property submitted to
the provisions of this chapter.
SECTION 53. ORS 100.640 is amended to read:
100.640. The following documents and information shall be
submitted to the Real Estate Commissioner as part of the filing
required under ORS 100.635:
(1) A copy of the proposed or recorded declaration or
supplemental declaration of condominium ownership drawn in
conformance with ORS 100.105 or 100.120, or the law applicable in
the state where the condominium was created;
(2) A copy of the proposed or recorded bylaws drawn in
conformance with ORS 100.415 or the law applicable in the state
where the condominium was created;
(3) A copy of the full size plat prepared in conformance with
ORS 100.115 (2) or the law applicable in the state where the
condominium was created, or a copy of the site plan;
(4) A statement from the county assessor { + or county
surveyor + } that the name for the condominium is acceptable
under ORS 100.105 (6);
(5) A copy of a preliminary title report, title insurance
policy or condominium guarantee that has been issued within the
preceding 30 days, including a map showing the location of
property described in the report, policy or guarantee or other
evidence of title satisfactory to the commissioner;
(6) A copy of all restrictive covenants, reservations or other
documents that may create an encumbrance on or limit the use of
the property other than those restrictions contained in the
declaration or bylaws;
{ + (7) A copy of the reserve study required by ORS 100.175
and other sources of information that serve as a basis for
calculating reserves in accordance with ORS 100.175 (3), unless
the information is contained in the disclosure statement; + }
{ - (7) - } { + (8) + } The following sample forms:
(a) Unit sales agreement, including the notice to purchaser of
cancellation rights in accordance with ORS 100.730 and 100.740,
the statement required by ORS 93.040 (1) and any warranty
required under ORS 100.185; and
(b) A receipt for documents required under ORS 100.725;
{ - (8) - } { + (9) + } If required by ORS 100.680:
(a) A copy of the escrow agreement drawn in conformance with
ORS 100.680 and executed by both the declarant and the escrow
agent. If individual escrow agreements or instructions are to be
executed by the purchaser, other than the standard escrow
instruction required by the escrow agent, submit sample form and
a letter from the escrow agent, agreeing to the establishment of
the escrows and the procedure set forth in the sample form; and
(b) A unit sales agreement drawn in conformance with ORS
100.680;
{ - (9) - } { + (10) + } If any of the sales will be by
means of an installment contract of sale:
(a) A copy of the escrow agreement or escrow instructions
executed by the developer and the escrow agent providing for the
establishment of collection escrows and the deposit of documents
in accordance with ORS 100.720; and
(b) The proposed installment contract of sale form, if
available;
{ - (10) - } { + (11) + } Any other documents by which the
purchasers will be bound;
{ - (11) - } { + (12) + } Any report or disclosure
statement issued for the condominium, by the federal government
and any other state; and
{ - (12) - } { + (13) + } A statement of any additional
facts or information which the developer desires to submit to the
commissioner.
SECTION 54. ORS 100.655 is amended to read:
100.655. (1) The disclosure statement submitted to the Real
Estate Commissioner as part of a filing under ORS 100.635 shall
contain the following information:
(a) The name and address of the condominium, and the name,
address and telephone number of the developer;
(b) A general narrative description of the condominium stating
the total number of units, a description of the types of units,
the total number of units that may be included in the condominium
pursuant to ORS 100.105 (2), and a precise statement of the
nature of the interest which is being offered;
(c) If at the time of filing:
(A) The construction of the project is not completed, general
disclosure of the status of construction and the actual or
scheduled dates of completion of buildings, recreational
facilities and other common elements, including a statement
describing any recreational facilities or improvements to the
common elements that the developer reserves the right to develop
or promises to develop, or a statement that there are no such
facilities or improvements; or
(B) The construction of the project is completed, the actual
dates of completion of buildings, recreational facilities and
other common elements if known by the developer;
(d) The nature and significant terms of any financing offered
by the developer to purchasers of the condominium units;
(e) Copies of any warranties for structural elements and
mechanical and other systems or a brief description of such
warranties;
(f) { + (A) + }A current or projected budget of the
association of unit owners for the operation and maintenance and
any other common expenses of the condominium, { + including an
amount for a subsidy of the association by the declarant, if any,
by a contribution of funds, goods or services;
(B) + } A brief statement of the method of determining
liability for common expenses and the right to common
profits { + ; + } and
{ + (C) + } The following notice in at least
{ - 8-point - } { + 14-point + }type { + that is either all
capitals or boldface + }:
_________________________________________________________________
NOTICE TO PROSPECTIVE PURCHASERS
THE PROJECTION OF THE BUDGET OF THE ASSOCIATION OF UNIT OWNERS
FOR THE OPERATION AND MAINTENANCE AND OTHER COMMON EXPENSES OF
THE CONDOMINIUM IS ONLY AN ESTIMATE, PREPARED WITH DUE CARE.
_________________________________________________________________
(g) { - A description of any provisions made in the budget of
the condominium for reserves for capital expenditures for repair
or replacement of common elements, including provisions required
by ORS 100.175, and an explanation of the basis for such
reserves - } { + If a provision for reserves under ORS 100.175
is included in the budget disclosed under paragraph (f) of this
subsection:
(A) A statement identifying the information constituting the
basis for the reserve assessment under ORS 100.175 (3)(b); and
(B) A statement that the information constituting the basis for
the reserve assessment identified under ORS 100.175 (3)(b) is
available for review upon written request to the declarant or the
designated person, unless included in the disclosure
statement + };
(h) In the case of a conversion condominium, a statement of:
(A) The present condition of all structural components and
major mechanical and utility installations in the condominium,
including the approximate date of construction and a reasonable
estimate of the remaining useful life of, at a minimum, the roof,
siding, plumbing, electrical, HVAC system, asphalt, sidewalks and
decks;
(B) Whether or not the assessment of conditions under
subparagraph (A) of this paragraph, which shall be in
{ - 8-point or larger - } { + at least 14-point + } type { +
that is all capitals or boldface + }, was prepared by a licensed
engineer, architect or home inspector; and
(C) The statutory procedure required to create a conversion
condominium;
(i) A cross-reference to the portions of the declaration, any
supplemental declaration and bylaws containing the general power
and authority of the board of directors, the method of
apportionment of voting rights among the members of the
association of unit owners and a statement of the nature and
extent of control of the board of directors retained by the
developer by voting rights or otherwise;
(j) A list of the documents by which purchasers may be bound,
including the declaration, bylaws, ground leases, management
agreement, easements, covenants, restrictions and conditions;
(k) A statement of whether there are any restrictions on
alienation of units or any use or occupancy restrictions, such as
limitations on residential or commercial use, pets, age of
occupants or number of occupants, and a cross-reference to those
portions of the declaration, any supplemental declaration, bylaws
or any other document containing the principal provisions
relating to those restrictions; and
(L) If the condominium is a staged condominium:
(A) Whether the declarant reserves the right to annex
additional property to the condominium pursuant to ORS 100.125
and, if so:
(i) The maximum number of units;
(ii) The date after which annexation right terminates;
(iii) The description of additional common elements declarant
reserves right to annex to the property and whether such common
elements might substantially increase the proportionate amount of
common expenses by current unit owners; and
(iv) The effect of annexation of additional units on allocation
of interest in the common elements and voting rights.
(B) If the condominium or any stage being filed under ORS
100.635 contains or may contain any variable property, a
statement of the rights reserved by the declarant under ORS
100.150 (1) and the results specified in ORS 100.155 if such
rights are not exercised.
(2) In lieu of the disclosure statement required under
subsection (1) of this section, the commissioner may accept a
disclosure report issued or approved by another state or
governmental agency.
(3) No disclosure statement is required for condominiums
described in ORS 100.660.
{ + (4) The declarant is not liable to the association or the
owners with respect to a statement of condition or estimate of
useful life contained in the disclosure statement if:
(a) The declarant did not have actual knowledge of any
inaccuracies in the statement at the time of delivery of the
disclosure statement to the purchaser; and
(b) The declarant relied upon reports prepared by licensed
engineers or architects in making the statement. + }
SECTION 55. ORS 100.740 is amended to read:
100.740. (1) Subject to ORS 100.730 (8), a unit sales agreement
shall contain, either upon the first page or upon a separate
sheet attached to such first page, the following notice in at
least { - 8-point - } { + 14-point + } type { + that is all
capitals or boldface + }:
_________________________________________________________________
NOTICE TO PURCHASER
(RIGHT OF CANCELLATION)
BY SIGNING A UNIT SALES AGREEMENT YOU ARE INCURRING A
CONTRACTUAL OBLIGATION TO PURCHASE AN INTEREST IN A CONDOMINIUM.
HOWEVER, YOU HAVE THE RIGHT TO CANCEL THIS AGREEMENT FOR ANY
REASON FOR FIVE BUSINESS DAYS (EXCLUDING SATURDAYS AND HOLIDAYS)
AFTER WHICHEVER OF THE FOLLOWING IS LAST TO OCCUR:
(1) SIGNING BY THE PURCHASER OF THE UNIT SALES AGREEMENT;
(2) SIGNING BY THE PURCHASER OF THE RECEIPT FOR THE DISCLOSURE
STATEMENT, IF ANY; OR
(3) SIGNING BY THE PURCHASER OF THE RECEIPT FOR A COPY OF THE
CONDOMINIUM DECLARATION AND BYLAWS AND ANY AMENDMENTS OR
SUPPLEMENTS THERETO AFFECTING THE UNIT.
TO CANCEL THIS AGREEMENT, YOU MUST GIVE WRITTEN NOTICE TO THE
DEVELOPER OR THE AGENT OF THE DEVELOPER AT THE FOLLOWING ADDRESS:
____________
____________
____________
____________
____________
(SUGGESTED PROCEDURE)
BEFORE EXECUTING THIS AGREEMENT, OR BEFORE THE CANCELLATION
PERIOD ENDS, YOU SHOULD DO THE FOLLOWING:
(1) CAREFULLY EXAMINE THE DISCLOSURE STATEMENT, IF ANY, ISSUED
BY THE REAL ESTATE COMMISSIONER ON THE CONDOMINIUM AND ALL
ACCOMPANYING INFORMATION DELIVERED BY THE DEVELOPER. OREGON LAW
REQUIRES THE DEVELOPER TO DELIVER TO YOU A COPY OF THE
DECLARATION AND BYLAWS OF THE CONDOMINIUM AND ANY SUPPLEMENTS AND
AMENDMENTS THERETO AFFECTING THE UNIT PRIOR TO THE TIME THE UNIT
SALES AGREEMENT IS FULLY EXECUTED BY ALL PARTIES. A COPY OF THE
DECLARATION AND BYLAWS, AND ANY SUPPLEMENTS AND AMENDMENTS
THERETO, ARE AVAILABLE FROM THE ASSOCIATION FOR EXAMINATION AND
DUPLICATION, AT A REASONABLE FEE, UPON YOUR WRITTEN REQUEST.
(2) INQUIRE OF YOUR LENDER WHETHER YOU CAN GET ADEQUATE
FINANCING ON AN ACCEPTABLE BASIS.
(3) INQUIRE OF THE DEVELOPER AND THE LENDER WHAT THE AMOUNT OF
THE CLOSING COSTS WILL BE.
OREGON LAW REQUIRES THAT YOU IMMEDIATELY BE GIVEN A COPY OF THIS
NOTICE AND A COPY OF THE UNIT SALES AGREEMENT WHEN IT HAS BEEN
FULLY EXECUTED BY ALL PARTIES.
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(2) Except as provided in ORS 100.665, a copy of the notice set
forth in subsection (1) of this section shall be given to each
purchaser at the time of or immediately following the purchaser's
signing of the unit sales agreement, for the use of the
purchaser.
SECTION 56. ORS 100.785 is amended to read:
100.785. (1) Subject to the provisions of ORS 100.720, a
condominium unit { - shall - } { + may + } not be
{ - sold - } { + conveyed + } by a developer subject to a
blanket encumbrance { - unless there exists in such blanket
encumbrance or other supplementary agreement a provision which by
its terms shall unconditionally provide that the purchaser of the
unit can obtain legal title or other interest bargained for, free
and clear of such blanket encumbrance, upon compliance with the
terms and conditions of the contract by which such purchaser's
interest was acquired - } .
(2) { - In lieu of the requirement of - }
{ + Notwithstanding + } subsection (1) of this section, the
developer shall conform to
{ - such - } { + an + } alternative requirement or method
which the Real Estate Commissioner may deem acceptable to
{ - carry into effect the intent and provisions - } { + afford
a purchaser the protection provided by the prohibition in
subsection (1) + } of this section.
SECTION 57. { + Section 58 of this 2001 Act is added to and
made a part of ORS chapter 100. + }
SECTION 58. { + Unless other rules of order are required by
the declaration or bylaws or by a resolution of the association
or its board of directors:
(1) Meetings of the association and the board of directors
shall be conducted according to the latest edition of Robert's
Rules of Order published by the Robert's Rules Association.
(2) A decision of the association or the board of directors may
not be challenged because the appropriate rules of order were not
used unless a person entitled to be heard was denied the right to
be heard and raised an objection at the meeting in which the
right to be heard was denied.
(3) A decision of the association and the board of directors is
deemed valid without regard to procedural errors related to the
rules of order one year after the decision is made unless the
error appears on the face of a written instrument memorializing
the decision. + }
SECTION 59. ORS 94.673 is amended to read:
94.673. (1) The homeowners association of a subdivision that
received preliminary plat approval before July 1, 1982, shall
comply with the provisions of ORS 94.640 (1), (3), (4),
{ - (6), - } (7), (8) { + and (9) + } and 94.670 if:
(a) An owner submits a written request to the homeowners
association to comply with the provisions;
(b) The subdivision otherwise conforms to the description of a
planned community under ORS 94.550; and
(c) The subdivision is not otherwise exempted under ORS 94.570.
(2) A homeowners association board of directors is not subject
to ORS 94.780 unless the association fails to comply with
subsection (1) of this section after receiving a written request
from an owner.
SECTION 60. ORS 100.275 is amended to read:
100.275. (1) Subject to ORS 100.550 (3), ORS 100.250 to
100.280, including the filing of a Condominium Information Report
described in ORS 100.260 (1), apply to property submitted to the
provisions of this chapter before October 3, 1989, if:
(a) The board of directors of the association receives a
written request to comply with such sections from at least one
unit owner or holder of a first mortgage or deed of trust on a
unit;
(b) The board of directors of the association adopts a
resolution to comply with such sections in accordance with the
bylaws;
(c) The association is a party to a suit or action, the person
designated in the declaration under ORS 100.105 { - (1)(j) - }
{ + (1)(k) + }, the chairman or secretary receives written
notice to comply with such sections from any other party to such
suit or action. A copy of the notice shall be delivered to the
Real Estate Agency. The Real Estate Agency shall provide a copy
of the filed report to the requesting party and may charge the
association a fee for cost of such action. If the association
fails to deliver for filing such report, the provisions of ORS
100.265 (3) shall apply; or
(d) A filing is required to comply with the requirements of ORS
100.120, 100.135 or 100.450.
(2) The Condominium Information Report required under
subsection (1) of this section shall be executed by the chairman
or secretary of the association and the designated agent.
SECTION 61. ORS 100.550 is amended to read:
100.550. (1) Service of process in any action relating to the
condominium may be made on:
(a) If the condominium was submitted to the provisions of this
chapter before October 3, 1989, the person designated in the
declaration to receive service of process;
(b) The person named as designated agent in the Condominium
Information Report filed with the Real Estate Agency under ORS
100.250;
(c) If the association is organized as a corporation under
Oregon law, the registered agent in accordance with ORS 60.111 or
61.086 (1987 Replacement Part); or
(d) The chairperson or secretary of the association.
(2) Except as provided in subsection (4) of this section, if
the association of unit owners of property submitted to the
provisions of this chapter before October 15, 1983, wishes to
designate a person other than the one named in the declaration to
receive service of process in the cases provided in subsection
(1) of this section, it shall record an amendment to the
declaration. The amendment shall be certified by the chairperson
and the secretary of the association of unit owners, and shall
state the name of the successor with the successor's residence or
place of business as required by ORS 100.105 { - (1)(j) - }
{ + (1)(k) + }, and that the person named in the amendment was
designated by resolution duly adopted by the association of unit
owners.
(3) Unless prohibited by the declaration or bylaws, the board
of directors of the association of unit owners of property
submitted to the provisions of this chapter after October 15,
1983, may elect to designate a person other than the one named in
the declaration to receive service of the process in the cases
provided in subsection (1) of this section. After the adoption of
a resolution by the board of directors in accordance with the
bylaws, the board of directors, without the need for further
action by the association or approval under ORS 100.110 and
100.135, shall record an amendment to the declaration. The
amendment shall be certified by the chairperson and the secretary
of the association of unit owners, and shall state the name of
the successor with the successor's residence or place of business
as required by ORS 100.105 { - (1)(j) - } { + (1)(k) + },
that the person named in the amendment has consented to the
designation and that the resolution was duly adopted by the
association of unit owners.
(4) Subsection (3) of this section applies to property
submitted to the provisions of this chapter before October 15,
1983, if:
(a) The board of directors of the association of unit owners
receives a written request from at least one unit owner that
subsection (3) of this section applies; or
(b) The board of directors of the association of unit owners
adopts a resolution in accordance with the bylaws of the
association that subsection (3) of this section applies.
SECTION 62. ORS 100.600 is amended to read:
100.600. (1)(a) Subject to ORS 100.605, the condominium may be
terminated if all of the unit owners remove the property from the
provisions of this chapter by executing and recording an
instrument to that effect and the holders of all liens affecting
the units consent thereto or agree, in either case by instruments
duly recorded, that their liens be transferred to the undivided
interest of the unit owner in the property after the termination.
The instrument shall state the interest of each unit owner and
lienholder as determined under ORS 100.610.
(b) The recording of an instrument of termination shall vacate
the plat but shall not vacate or terminate any recorded
covenants, restrictions, easements or other interests not imposed
under the declaration or bylaws or any easement granted by the
plat unless the instrument of termination otherwise provides.
(c) Before the instrument of termination may be recorded, it
must be signed by the county assessor for the purpose of
acknowledging that the county assessor has been notified of the
proposed termination.
(d) The person offering the instrument of termination for
recording shall cause a copy of the recorded instrument,
including the recording information, to be filed with the
commissioner. The county clerk shall promptly provide a certified
copy of the recorded instrument of termination to the county
assessor and the county surveyor. Upon receipt of the instrument
of termination, the county surveyor shall make appropriate
annotations, including the date and surveyor's name or initials,
with archival quality black ink on the surveyor's copy of the
plat and any copies filed under ORS 92.120. Corrections or
changes shall not be allowed on the original plat once it is
recorded with the county clerk.
(e) Failure to file the copies as required under paragraph (d)
of this subsection shall not invalidate the termination.
(2) A portion of the property may be removed from the
provisions of this chapter by recording simultaneously with the
recording officer an amendment to the declaration and an amended
plat approved as required under ORS 100.110, 100.115 and 100.135.
The amendment to the declaration shall:
(a) Include a metes and bounds legal description of the
property being removed;
(b) Include a metes and bounds legal description of the
resulting boundaries of the condominium after the removal;
(c) State the interest of each owner and lienholder in the
property being removed;
(d) State the interest of each unit owner and lienholder in the
condominium after the removal;
(e) Be approved and executed by all owners and lienholders and
acknowledged in the manner provided for acknowledgment of deeds;
and
(f) A statement by the local governing body or appropriate
department thereof that the removal will not violate any
applicable planning or zoning regulation or ordinance. The
statement may be attached as an exhibit to the amendment.
(3) The amended plat required under subsection (2) of this
section shall:
(a) Comply with ORS 100.115 { - (6) - } { + (9) + };
(b) Include a 'Statement of Removal' that the property
described on the amended plat is removed from the condominium and
that the condominium exists as described and depicted on the
amended plat. Such statement shall be made by the chairperson and
secretary of the association and acknowledged in the manner
provided for acknowledgment of deeds; and
(c) Include such signatures of approval as may be required by
local ordinance or regulation.
(4) The tax collector for any taxing unit having a lien for
taxes or assessments shall have authority to consent to such a
transfer of any tax or assessment lien under subsection (1) of
this section or the removal of a portion of the property under
subsection (2) of this section.
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