75th OREGON LEGISLATIVE ASSEMBLY--2009 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 3127
A-Engrossed
House Bill 3090
Ordered by the House May 1
Including House Amendments dated May 1
Sponsored by Representative CANNON, Senator DINGFELDER;
Representatives BAILEY, BARNHART, BRUUN, BUCKLEY, DEMBROW,
HARKER, READ, STIEGLER, Senators HASS, ROSENBAUM
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.
Prohibits inclusion in instrument conveying or contracting to
convey real property or in declaration or bylaws of community
{ + or condominium + } governed by declaration of certain
provisions prohibiting or limiting use of renewable energy
devices.
{ + Specifies procedures by which owner of property may
petition to remove provision from instrument. + }
A BILL FOR AN ACT
Relating to renewable energy; creating new provisions; and
amending ORS 93.272 and 105.880.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 105.880 is amended to read:
105.880. { - (1) No person conveying or contracting to convey
fee title to real property shall include in an instrument for
such purpose a provision prohibiting the use of solar energy
systems by any person on that property. - }
{ - (2) Any provision executed in violation of subsection (1)
of this section after October 3, 1979, is void and
unenforceable. - }
{ - (3) For the purposes of this section, 'solar energy
system' means any device, structure, mechanism or series of
mechanisms which uses solar radiation as a source for heating,
cooling or electrical energy. - }
{ + (1) As used in this section, 'solar energy system' means
a device, structure, mechanism or series of mechanisms that uses
solar radiation as a source for heating, cooling or electrical
energy, including a device, structure or mechanism for radiant
drying of clothing in open air.
(2) A person may not include in an instrument conveying or
contracting to convey fee title to real property a provision:
(a) Prohibiting the use of a solar energy system on the
property; or
(b) Restricting the orientation or use of a solar energy system
on the property in a manner that impairs the effective operation
of the solar energy system.
(3) A provision in an instrument is void and unenforceable if
the provision violates:
(a) Subsection (2)(a) of this section and the instrument was
executed after October 3, 1979.
(b) Subsection (2)(b) of this section and the instrument was
executed after the effective date of this 2009 Act.
(4) An owner of record of real property subject to an
instrument containing a provision described in this section may
file a petition to remove the provision in the manner provided in
ORS 93.272 for removal of a similar provision from an instrument
conveying or contracting to convey fee title to real
property. + }
SECTION 2. { + Section 3 of this 2009 Act is added to and made
a part of ORS 94.550 to 94.783. + }
SECTION 3. { + (1) A provision in a declaration or bylaws of a
planned community is void and unenforceable as a violation of the
public policy to protect the public health, safety and welfare if
the provision:
(a) Prohibits the use of a solar energy system, as defined in
ORS 105.880, on a lot; or
(b) Restricts the orientation or use of a solar energy system
on a lot in a manner that impairs the effective operation of the
solar energy system.
(2) An owner of record of a lot that is subject to an
instrument containing a provision described in this section may
file a petition to remove the provision in the manner provided in
ORS 93.272 for removal of a similar provision from an instrument
conveying or contracting to convey fee title to real property.
(3) This section does not:
(a) Authorize an owner of record to install a solar energy
system in or on common property or property maintained by the
homeowners association.
(b) Prohibit inclusion in a declaration, bylaws, rules or
regulations of a provision that establishes reasonable
restrictions on size, appearance or location of a solar energy
system without impairing effective operation of the solar energy
system. + }
SECTION 4. { + Section 5 of this 2009 Act is added to and made
a part of ORS chapter 100. + }
SECTION 5. { + (1) A provision in a declaration or bylaws of a
condominium is void and unenforceable as a violation of the
public policy to protect the public health, safety and welfare if
the provision:
(a) Prohibits the use of a solar energy system in or on a unit
or limited common elements reserved to the unit; or
(b) Restricts the orientation or use of a solar energy system
in or on a unit or limited common elements reserved to the unit
in a manner that impairs the effective operation of the solar
energy system.
(2) A unit owner of a condominium unit that is subject to an
instrument containing a provision described in this section may
file a petition to remove the provision in the manner provided in
ORS 93.272 for removal of a similar provision from an instrument
conveying or contracting to convey fee title to real property.
(3) This section does not:
(a) Authorize a unit owner to install a solar energy system in
or on a general common element or property maintained by the
association of unit owners.
(b) Prohibit inclusion in a declaration, bylaws, rules or
regulations of a provision that establishes reasonable
restrictions on size, appearance or location of a solar energy
system without impairing effective operation of the solar energy
system. + }
SECTION 6. ORS 93.272 is amended to read:
93.272. (1) Any owner of record of real property that is
subject to an instrument conveying or contracting to convey fee
title to the property that contains a provision that is in
violation of ORS 93.270 { + or 105.880 or section 3 or 5 of this
2009 Act + } may file a petition to remove that provision from
the title to the property. The petition { - shall - }
{ + must + } be filed in the circuit court for the county in
which the property is located. { - No fee shall be charged - }
{ + The circuit court may not charge a fee + } for the filing of
the petition. The petition { - shall - } { + must + }
contain:
(a) The name and mailing address of the person filing the
petition;
(b) The name and mailing address of all owners of record of the
property;
(c) The legal description of the property subject to the
provision in violation of ORS 93.270 { + or 105.880 or section 3
or 5 of this 2009 Act + }; and
(d) A clear reference to the provision claimed to be in
violation of ORS 93.270 { + or 105.880 or section 3 or 5 of this
2009 Act + }.
(2) { + The petitioner shall serve + } notice and a copy of
the petition { - shall be served - } on all owners of record
in any manner provided for in ORCP 7. The notice { - shall - }
{ + must + } inform the owners of record that:
(a) The petition seeks the removal of a provision that is in
violation of ORS 93.270 { + or 105.880 or section 3 or 5 of this
2009 Act + } from the title to the property;
(b) The person served may request a hearing within 10 days
after service of the petition; and
(c) The court { - is authorized to - } { + may + } enter a
default judgment removing the provision if { - no - } { + the
owners of record do not request a + } hearing { - is requested
by the owners of record - } .
(3) The petitioner shall file with the court proof of service
in the manner provided in ORCP 7 F. If { - no - } { + a + }
request for hearing is { + not + } made by any person served
within 10 days after service on that person, the court shall
enter a judgment removing the provision from the title to the
property if the court determines that the provision is in
violation of ORS 93.270 { + or 105.880 or section 3 or 5 of this
2009 Act + }.
(4) If a hearing is requested by any person served under
subsection (2) of this section, the clerk of the court shall
schedule a hearing within 20 days after the filing of the request
for a hearing. The clerk of the court shall mail notification of
the hearing date to the petitioner and to all owners of record
listed in the petition.
(5) At any hearing under the provisions of this section, the
sole issue { - that shall - } { + to + } be decided by the
court is whether the provision that is the subject of the
petition is in violation of ORS 93.270 { + or 105.880 or section
3 or 5 of this 2009 Act + }. The { + court shall try the + }
matter { - shall be tried to the court sitting - } without { +
a + } jury. If the court finds that the provision is not in
violation of ORS 93.270 { + or 105.880 or section 3 or 5 of this
2009 Act + }, the court shall dismiss the petition. If the court
finds that the provision is in violation of ORS 93.270 { + or
105.880 or section 3 or 5 of this 2009 Act + }, the court shall
enter a judgment removing the provision from the title to the
property.
(6) If a court finds only part of a provision to be in
violation of ORS 93.270 { + or 105.880 or section 3 or 5 of this
2009 Act + } under this section, the court shall enter a judgment
removing only that part of the provision that is in violation.
(7) For the purposes of this section { - , - } { + :
(a) 'Instrument conveying or contracting to convey fee title'
includes a declaration and bylaws of a planned community
established pursuant to ORS 94.550 to 94.783 or by contract and a
declaration and bylaws of a condominium established pursuant to
ORS chapter 100.
(b) + } ' Owner of record' means a person having any legal or
equitable interest in property, including, but not limited to, a
purchaser, lienholder or holder of any security interest in
{ - such - } { + the + } property whose interest is recorded
in the public records provided for by Oregon statutes where the
owner's interest must be recorded to perfect a lien or security
interest or provide constructive notice of the owner's interest.
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