Chapter 565 Oregon Laws 2005
AN ACT
HB 2269
Relating to immediate possession of property subject to condemnation.
Be It Enacted by the People of the State of
Oregon:
SECTION 1. Sections 2 and 3 of this 2005 Act are added to and made a part of ORS chapter 35.
SECTION 2. This chapter does not affect the ability of a public body, as defined in ORS 174.109, to take immediate possession of property in an emergency that poses a threat to persons or property.
SECTION
3. (1) At any time after a
condemnation action is commenced, a public condemner may serve notice that the
public condemner will take immediate possession of the property that is the
subject of the action. The notice must be served in the manner provided by ORCP
9 on all defendants in the action.
(2)
If notice is served under this section, a defendant in a condemnation action
may object to immediate possession of property by a public condemner by filing
a written objection with the court within 10 days after notice is served on the
defendant under this section and serving a copy of the objection on the public
condemner in the manner provided by ORCP 9. The objection must request that the
court schedule a hearing on the objection at the earliest possible time. The
only issues that a court may consider upon objection are:
(a)
Whether the condemnation is legal; and
(b)
Subject to the presumption established by ORS 35.235 (2), whether the public
condemner has acted in bad faith, engaged in fraud or engaged in an abuse of
discretion under a delegation of authority.
(3)
If notice is served under this section and an objection is not filed with the
court within the time allowed under subsection (2) of this section, the public
condemner may at any time thereafter file with the court a form of order confirming
the public condemner’s possession of the property as of the date specified in
the notice. The form of order must be accompanied by an affidavit attesting to
service of the notice as required by subsection (1) of this section, and a
statement that an objection was not filed within 10 days after notice was
served on the defendants in the action. Upon filing of the affidavit, the clerk
of the court shall affix the seal of the court to the form of order. The order
may thereafter be enforced in the same manner as any other order of the court.
(4) A notice under this section must be in substantially the following form:
____________________________________________________________________________
CIRCUIT COURT FOR THE
COUNTY OF ________
)
____________ )
Plaintiff, ) NOTICE OF
) IMMEDIATE
) POSSESSION
)
vs. ) Case
No. ___
)
____________ )
Defendant. )
TO THE DEFENDANTS:
By
service of this notice, you are advised that the plaintiff will take possession
of the property described in the complaint on:
(1)
______, 2__, if the deposit required by ORS 35.265 has been made by that date; or
(2)
The date on which the deposit required by ORS 35.265 is made if that date is
later than the date specified above.
You
may file an objection with the court within 10 days after this notice is served
on you. An objection may be made only to determine:
(1)
Whether the condemnation is legal; and
(2) Subject to the presumption established by ORS 35.235 (2), whether the public condemner has acted in bad faith, engaged in fraud or engaged in an abuse of discretion under a delegation of authority.
______________________
Attorney for Plaintiff
______________________
Address
______________________
Telephone Number
____________________________________________________________________________
(5)
The court shall expeditiously consider any objection filed under this section
to prevent prejudice to the public condemner’s need for immediate possession.
(6)
The ability of the defendant in a condemnation action to assert legal defenses
in the answer of the defendant under ORS 35.295 is not affected solely by
reason of the filing of an objection to a notice served under this section, or
by reason of the failure to file an objection.
(7) This section does not impose a requirement that a public condemner use the procedure described in this section, and the procedure described in this section is not the exclusive method by which a public condemner may obtain possession of property.
Approved by the Governor July 20, 2005
Filed in the office of Secretary of State July 20, 2005
Effective date January 1, 2006
__________