75th OREGON LEGISLATIVE ASSEMBLY--2009 Regular Session
Enrolled
Senate Bill 963
Sponsored by COMMITTEE ON JUDICIARY
CHAPTER ................
AN ACT
Relating to properties governed by declarations; creating new
provisions; and amending ORS 94.572, 94.595, 94.625, 94.630,
94.635, 94.640, 94.655, 94.657, 94.658, 94.665, 94.670, 94.700,
94.704, 94.733, 100.020, 100.105, 100.110, 100.115, 100.120,
100.125, 100.130, 100.135, 100.155, 100.175, 100.405, 100.408,
100.409, 100.410, 100.415, 100.417, 100.420, 100.480, 100.485,
100.510, 100.515, 100.525, 100.530, 100.540, 100.600 and
100.640 and sections 24 and 26, chapter 803, Oregon Laws 2003.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + Sections 2 and 3 of this 2009 Act are added to
and made a part of ORS 94.550 to 94.783. + }
SECTION 2. { + (1) Each member of the board of directors must
be an individual and, except as provided in subsections (2) and
(3) of this section, an owner or co-owner of a lot in the planned
community.
(2) A director appointed by a declarant under ORS 94.600 need
not be an owner or co-owner of a lot in the planned community.
(3)(a) Except as otherwise provided in the bylaws, prior to
election to the board of directors, an individual described in
this subsection shall, upon request of the board, provide the
board with documentation satisfactory to the board that the
individual is qualified to represent the entity or is a trustee
or is serving in a fiduciary capacity for the owner of a lot.
(b) If a corporation, limited liability company or partnership
owns a lot in the planned community or owns an interest in an
entity that owns a lot in the planned community, an officer,
employee or agent of a corporation, a member, manager, employee
or agent of a limited liability company, or a partner, employee
or agent of a partnership may serve on the board of directors.
(c) A trustee may serve on the board of directors if the
trustee holds legal title to a lot in the planned community for
the benefit of the owner of the beneficial interest in the lot.
(d) An executor, administrator, guardian, conservator, or other
individual appointed by a court to serve in a fiduciary capacity
for an owner of a lot in the planned community, or an officer or
employee of an entity if an entity is appointed, may serve on the
board of directors.
(4) The position of an individual serving on the board of
directors under subsection (3) of this section automatically
becomes vacant if the individual no longer meets the requirements
of subsection (3) of this section. + }
Enrolled Senate Bill 963 (SB 963-B) Page 1
SECTION 3. { + (1) If a homeowners association is at any time
dissolved, whether inadvertently or deliberately:
(a) The association automatically continues as an
unincorporated association under the same name.
(b) The unincorporated association:
(A) Has all the property, powers and obligations of the
incorporated association existing immediately prior to
dissolution;
(B) Shall be governed by the bylaws and, to the extent
applicable, the articles of incorporation of the incorporated
association; and
(C) Shall be served by the members of the board of directors
and the officers who served immediately prior to dissolution.
(2) A separate association is not created when an association
is reinstated after administrative dissolution under ORS 65.654
or again incorporated following dissolution. The association
automatically continues without any further action by
incorporators, directors or officers that may otherwise be
required under ORS chapter 65.
(3)(a) The association described in subsection (2) of this
section has all the property, powers and obligations of the
unincorporated association that existed immediately prior to
incorporation or reinstatement.
(b) The bylaws in effect immediately prior to incorporation or
reinstatement constitute the bylaws of the incorporated
association.
(c) The members of the board of directors and the officers
continue to serve as directors and officers.
(4) The provisions of this section apply notwithstanding any
provision of a governing document of a planned community that
appears to be contrary. + }
SECTION 3a. ORS 94.572 is amended to read:
94.572. (1)(a) A Class I or Class II planned community created
before January 1, 2002, that was not created under ORS 94.550 to
94.783 is subject to this section and ORS 94.550, 94.590, 94.595
(5) to (9), 94.625, 94.630 (1), (3) and (4), 94.640, 94.641,
94.642, 94.645, 94.647, 94.650, 94.652, 94.655, 94.657, 94.658,
94.660, 94.661, 94.662, 94.665, 94.670, 94.675, 94.676, 94.680,
94.690, 94.695, 94.704, 94.709, 94.712, 94.716, 94.719, 94.723,
94.728, 94.733, 94.770, 94.775, 94.777 and 94.780 { + and
sections 2 and 3 of this 2009 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,
94.595 (5) to (9), 94.625, 94.630 (1), (3) and (4), 94.640,
94.641, 94.642, 94.645, 94.647, 94.650, 94.652, 94.655, 94.657,
94.658, 94.660, 94.661, 94.662, 94.665, 94.670, 94.675, 94.676,
94.680, 94.690, 94.695, 94.704, 94.709, 94.712, 94.716, 94.719,
94.723, 94.728, 94.733, 94.770, 94.775, 94.777 and 94.780
{ + and sections 2 and 3 of this 2009 Act + }. Nothing in this
Enrolled Senate Bill 963 (SB 963-B) Page 2
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,
94.595 (5) to (9), 94.625, 94.630 (1), (3) and (4), 94.640,
94.641, 94.642, 94.645, 94.647, 94.650, 94.652, 94.655, 94.657,
94.658, 94.660, 94.661, 94.662, 94.665, 94.670, 94.675, 94.676,
94.680, 94.690, 94.695, 94.704, 94.709, 94.712, 94.716, 94.719,
94.723, 94.728, 94.733, 94.770, 94.775, 94.777 and 94.780
{ + and sections 2 and 3 of this 2009 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, 94.595 (5) to (9), 94.625, 94.630 (1),
(3) and (4), 94.640, 94.641, 94.642, 94.645, 94.647, 94.650,
94.652, 94.655, 94.657, 94.658, 94.660, 94.661, 94.662, 94.665,
94.670, 94.675, 94.676, 94.680, 94.690, 94.695, 94.704, 94.709,
94.712, 94.716, 94.719, 94.723, 94.728, 94.733, 94.770, 94.775,
94.777 and 94.780 { + and sections 2 and 3 of this 2009 Act + }
by a vote of at least a majority of the owners in the planned
community.
(iii) An 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
Enrolled Senate Bill 963 (SB 963-B) Page 3
community, or, if a larger percentage is specified in the
applicable governing document, 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 (4).
(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 ORS 94.657.
(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 applicable governing document, 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.
(v) An owner may vote by proxy, or by written ballot, if
approved, in the discretion of a majority of the initiating
owners or governing entity.
(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
Enrolled Senate Bill 963 (SB 963-B) Page 4
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 January 1, 2002, 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 ORS 94.572';
(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 Oregon Planned Community Act;
(e) A reference to the specific provisions of the Oregon
Planned Community Act that apply to the subject property and a
Enrolled Senate Bill 963 (SB 963-B) Page 5
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) The board of directors of an association not otherwise
required to cause a notice of planned community described in
subsection (4) of this section to be prepared and recorded under
this section may cause a notice of planned community to be
prepared, executed and recorded as provided in subsection (4) of
this section.
(9) Title to a unit, lot or common property in a Class I or
Class II planned community created before January 1, 2002, 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.
(10) As used in this section:
(a) '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.
(b) '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. ORS 94.595 is amended to read:
94.595. (1) The declarant, on behalf of a homeowners
association, shall:
(a) Conduct an initial reserve study as described in subsection
(3) of this section;
(b) Prepare an initial maintenance plan as described in
subsection (4) of this section; and
(c) Establish a reserve account as provided in subsection (2)
of this section.
(2)(a) A reserve account shall be established to fund major
maintenance, repair or replacement of all items of common
property which will normally require major maintenance, repair or
replacement, in whole or in part, in more than one 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 other items required by the
declaration or bylaws. The reserve account need not include
reserves for those items:
(A) That can reasonably be funded from the general budget or
other funds or accounts of the association; or
(B) For which one or more, but less than all, owners are
responsible for maintenance and replacement under the provisions
of the declaration or bylaws.
(b) The reserve account shall be established in the name of the
homeowners association. The association is responsible for
Enrolled Senate Bill 963 (SB 963-B) Page 6
administering the account and for making periodic payments into
the account.
(c) The reserve portion of the initial assessment determined by
the declarant shall be based on:
(A) The reserve study described in subsection (3) of this
section; or
(B) Other reliable information.
(d) A reserve account established under this section must be
funded by assessments against the individual lots for which the
reserves are established.
(e) Unless the declaration provides otherwise, the assessments
under this subsection begin accruing for all lots from the date
the first lot is conveyed.
(3)(a) The board of directors of the association annually shall
conduct a reserve study or review and update an existing study to
determine the reserve account requirements { + . + } { - and
may: - } { + Subject to subsection (8) of this section, after
review of the reserve study or reserve study update, the board of
directors may, without any action by owners: + }
(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.
(b) The reserve study shall:
(A) Identify all items for which reserves are or will be
established;
(B) Include the estimated remaining useful life of each item as
of the date of the reserve study; and
(C) Include for each item, as applicable, an estimated cost of
maintenance and repair and replacement at the end of the item's
useful life.
(4)(a) The board of directors shall prepare a maintenance plan
for the maintenance, repair and replacement of all property for
which the association has maintenance, repair or replacement
responsibility under the declaration or bylaws or ORS 94.550 to
94.783. The maintenance plan shall:
(A) Describe the maintenance, repair and replacement to be
conducted;
(B) Include a schedule for the maintenance, repair and
replacement;
(C) Be appropriate for the size and complexity of the
maintenance, repair and replacement responsibility of the
association; and
(D) Address issues that include but are not limited to
warranties and the useful life of the items for which the
association has maintenance, repair and replacement
responsibility.
(b) The board of directors shall review and update the
maintenance plan described under this subsection as necessary.
(5)(a) If the declaration or bylaws require a reserve account,
the reserve study requirements of subsection (3) of this section
and the maintenance plan requirements of subsection (4) 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, when:
(A) The board of directors adopts a resolution in compliance
with the bylaws that applies the requirements of subsections (3)
and (4) of this section to the association; or
Enrolled Senate Bill 963 (SB 963-B) Page 7
(B) A petition signed by a majority of owners is submitted to
the board of directors mandating that the requirements of
subsections (3) and (4) of this section apply to the association.
(b) A reserve study and maintenance plan shall be completed
within one year of adoption of the resolution or submission of
the petition to the board of directors.
(6)(a) Except as provided in paragraph (b) of this subsection,
the reserve account may be used only for the purposes for which
reserves have been established and is to be kept separate from
other funds.
(b) After the individual lot owners have assumed responsibility
for administration of the planned community under ORS 94.616, if
the board of directors has adopted a resolution, which may be an
annual continuing resolution, authorizing the borrowing of funds:
(A) The board of directors may borrow funds from the reserve
account to meet high seasonal demands on the regular operating
funds or to meet unexpected increases in expenses.
(B) 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) { - 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. - } { +
The reserve account is subject to the requirements and
restrictions of ORS 94.670 and any additional restrictions or
requirements imposed by the declaration, bylaws or rules of the
homeowners association. + }
{ - (8) In addition to the authority of the board of
directors under subsection (3)(a) of this section, following the
second year after the association has assumed administrative
responsibility for the planned community under ORS 94.616: - }
{ - (a) By an affirmative vote of at least 75 percent of the
owners of the planned community, 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. - }
{ + (8)(a) Except as provided under paragraph (b) of this
subsection, unless the board of directors under subsection (3) of
this section determines that the reserve account will be
adequately funded for the following year, the board of directors
or the owners may not vote to eliminate funding a reserve account
required under this section or under the declaration or bylaws.
(b) Following the turnover meeting described in ORS 94.609, on
an annual basis, the board of directors, with the approval of all
owners, may elect not to fund the reserve account for the
following year. + }
(9) Assessments paid into the reserve account are the property
of the association and are not refundable to sellers or owners of
lots.
SECTION 5. ORS 94.625 is amended to read:
94.625. (1) Except as provided in subsection (2) of this
section, not later than the date on which the first lot in the
planned community is conveyed, the declarant shall:
(a) Organize the homeowners 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
Enrolled Senate Bill 963 (SB 963-B) Page 8
(c) Record the bylaws in the office of the recording officer of
each county in which the planned community is located.
(2) If the plat contains a conveyance of any property to the
homeowners association, the declarant shall organize the
homeowners association as a nonprofit corporation under ORS
chapter 65 before the plat is recorded.
(3)(a) The board of directors of an association of a planned
community created under ORS 94.550 to 94.783 before January 1,
2002, or a planned community described in ORS 94.572 shall cause
the bylaws of the association and amendments to the bylaws in
effect but not codified in the bylaws to be certified as provided
in this subsection and recorded in the office of the recording
officer of each county in which the planned community is located
within 180 days of receipt of a written request from an owner
that the bylaws be recorded.
(b) The president and secretary of the association shall
certify and acknowledge, in the manner provided for
acknowledgment of deeds, that:
(A) The bylaws are the duly adopted bylaws of the association;
and
(B) Each amendment to the bylaws was duly adopted in accordance
with the bylaws of the association.
(c) The 180-day period specified in paragraph (a) of this
subsection may be extended as necessary if the board of directors
is unable to record the bylaws for justifiable reasons.
(d) Failure to record the bylaws or amendments to the bylaws in
accordance with this subsection does not render the bylaws or
amendments to the bylaws ineffective.
{ + (e) After the bylaws are recorded under this section, all
amendments to the bylaws adopted thereafter must be recorded as
provided in this section. + }
(4) 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.
(5) Subject to subsection (6) 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, by written ballot in
lieu of a meeting under ORS 94.647 or other procedure permitted
under the declaration or bylaws;
(b) Certified by the president and secretary of the association
as having been adopted in accordance with the bylaws and this
section and acknowledged in the manner provided for
acknowledgment of deeds if the amendment is required to be
recorded under paragraph (c) of this subsection; and
(c) Recorded in the office of the recording officer if the
bylaws to which the amendment relates were recorded.
(6) 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.
(7) Notwithstanding a provision in the bylaws, including bylaws
adopted prior to July 14, 2003, that requires an amendment to be
executed, or executed and acknowledged, by all owners approving
the amendment, amendments to the bylaws under this section become
effective after approval by the owners if executed and certified
on behalf of the association by the president and secretary in
accordance with subsection (5)(b) of this section.
Enrolled Senate Bill 963 (SB 963-B) Page 9
(8) An amendment to the bylaws is conclusively presumed to have
been regularly adopted in compliance with all applicable
procedures relating to the amendment unless an action is brought
within one year after the effective date of the amendment or the
face of the amendment indicates that the amendment received the
approval of fewer votes than required for approval. Nothing in
this subsection prevents the further amendment of an amended
bylaw.
(9) Failure to comply with subsection (1) of this section does
not invalidate a conveyance from the declarant to an owner.
(10) The board of directors, by resolution and without the
further approval of the owners, may cause restated bylaws to be
prepared and recorded to codify individual amendments that have
been adopted in accordance with subsection (5) of this section.
Bylaws restated under this subsection must:
(a) Include all previously adopted amendments that are in
effect and may not include any other changes except to correct
scriveners' errors or to conform format and style;
(b) Include a statement that the board of directors has adopted
a resolution in accordance with this subsection and is causing
the bylaws to be restated and recorded under this subsection;
(c) Include a reference to the recording index numbers and date
of recording of the initial bylaws, if recorded, and all
previously recorded amendments that are in effect and are being
codified;
(d) Include a certification by the president and secretary of
the association that the restated bylaws include all previously
adopted amendments that are in effect and no other changes
except, if applicable, to correct scriveners' errors or to
conform form and style; and
(e) Be executed and acknowledged by the president and secretary
of the association and recorded in the deed records of each
county in which the planned community is located.
SECTION 6. ORS 94.630 is amended to read:
94.630. (1) 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, including but not limited to actions for damage,
destruction, impairment or loss of use, relating to or affecting:
Enrolled Senate Bill 963 (SB 963-B) Page 10
(i) Individually owned real property, the expenses for which,
including maintenance, repair or replacement, insurance or other
expenses, the association is responsible; or
(ii) 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 individually owned real property, the expenses
for which, including maintenance, repair or replacement,
insurance or other expenses, the association is responsible; 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 { + as provided in ORS 94.665 + };
(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,
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.
The rules must provide for written notice and an opportunity to
be heard before the association may terminate the rights of any
owners to receive the benefits or services until the correction
of any violation covered by the 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, rules and
regulations of the association, provided that the charge imposed
or the fine levied by the association is based:
(A) 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
Enrolled Senate Bill 963 (SB 963-B) Page 11
(B) 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
acknowledgment 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
Enrolled Senate Bill 963 (SB 963-B) Page 12
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 7. 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) The percentage of votes that { - shall constitute - }
{ + constitutes + } a quorum { + in accordance with ORS
94.655 + }.
(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 (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 (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, repair and
replacement of the common property;
(b) The method of payment for the expense of the program and
other expenses of the planned community; and
(c) The method of approving payment vouchers.
Enrolled Senate Bill 963 (SB 963-B) Page 13
(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.
(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 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 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 8. 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 are governed by this section
and the applicable provisions of ORS 65.357, 65.361, 65.367,
65.369 and 65.377, whether or not the association is incorporated
under ORS chapter 65.
(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.
(6) Unless otherwise provided in the declaration or bylaws:
(a) 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.
(b) Removal of a director is not 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.
(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 - } { + the board may close the meeting to owners
other than board members and meet + } in executive session
{ + to + }:
(A) { - Consultation - } { + Consult + } with legal
counsel { + ; and + }
Enrolled Senate Bill 963 (SB 963-B) Page 14
{ - concerning the rights and duties of the association
regarding existing or potential litigation, or criminal
matters; - }
{ + (B) Consider the following: + }
{ - (B) - } { + (i) + } Personnel matters, including salary
negotiations and employee discipline;
{ - (C) - } { + (ii) + } Negotiation of contracts with
third parties; and
{ - (D) - } { + (iii) + } Collection of unpaid assessments.
(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. The
statement, motion or decision to meet in executive session must
be included in the minutes of the meeting.
(c) A contract or an action considered in executive session
does not become effective unless the board of directors,
following the executive session, reconvenes in open meeting and
votes on the contract or an action, which must be reasonably
identified in the open meeting and included in the minutes.
(d) The meeting and notice requirements in this section may not
be circumvented by chance or social meetings or by any other
means.
(8) In a planned community in which the majority of the lots
are the principal residences of the occupants, meetings of the
board of directors must comply with the following:
(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 or by the use of a means of
communication that allows all members of the board of directors
participating to hear each other simultaneously or otherwise to
be able to communicate during the meeting. A member of the board
of directors participating in a meeting by this means is deemed
to be present in person at the meeting.
(9) The board of directors, in the name of the association,
shall maintain a current mailing address of the association.
(10) The board of directors shall cause the information
required to enable the association to comply with ORS 94.670
{ - (7) - } { + (8) + } to be maintained and kept current.
(11) As used in this section, 'meeting' means a convening of a
quorum of members of the board of directors { - where - }
{ + at which + }
{ - matters relating to - } association business { - are - }
{ + is + } discussed, except a convening of a quorum of members
of the board of directors for the purpose of participating in
litigation, mediation or arbitration proceedings.
SECTION 9. ORS 94.655 is amended to read:
94.655. (1) Unless the declaration or bylaws of a homeowners
association { - provide otherwise - } { + specify a greater
percentage + }, a quorum for any meeting of the association
Enrolled Senate Bill 963 (SB 963-B) Page 15
consists of the number of persons who are entitled to cast 20
percent of the votes and who are present in person, by proxy or
by absentee ballot, if absentee ballots are permitted by the
board of directors, at the beginning of the meeting.
(2) If any meeting of the association cannot be organized
because of a lack of a quorum, the owners who are present, either
in person or by proxy, may adjourn the meeting { + from time to
time until a quorum is present + }.
{ + (3) Except as provided in subsection (4) of this
section, + } the quorum for a { - subsequent - } meeting
{ + following a meeting adjourned for lack of a quorum + } is
the greater of:
(a) One-half of the quorum required in the declaration or
bylaws; or
(b) { - The quorum required in subsection (1) of this
section - } { + Twenty percent of the votes that may be cast by
persons who are present in person, by proxy or by absentee
ballot, if absentee ballots are permitted.
(4) A quorum is not reduced under subsection (3) of this
section unless:
(a) The meeting is adjourned to a date that is at least 48
hours from the time the original meeting was called; or
(b) The meeting notice specifies:
(A) That the quorum requirement will be reduced if the meeting
cannot be organized because of a lack of a quorum; and
(B) The reduced quorum requirement + }.
SECTION 10. ORS 94.657 is amended to read:
94.657. { + (1) + } 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 11. ORS 94.658 is amended to read:
94.658. (1) Unless the declaration provides otherwise, each lot
of a planned community shall be entitled to one vote.
(2) Unless the declaration or bylaws provide otherwise:
(a) An { + attorney-in-fact, + } executor, administrator,
guardian { + , conservator + } or trustee may vote or grant
consent 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 { + attorney-in-fact, + }
executor, administrator, guardian { + , conservator + } or
trustee holding the lot { + in a fiduciary capacity + }.
(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 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,
Enrolled Senate Bill 963 (SB 963-B) Page 16
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 12. ORS 94.665 is amended to read:
94.665. (1) Except as otherwise provided in the declaration, a
homeowners association may sell, { + transfer, + } convey or
subject to a security interest any portion of the common property
if 80 percent or more of the votes in the homeowners association,
including 80 percent of the votes of lots not owned by a
declarant at the time of the vote, are cast in favor of
{ - that - } { + the + } action.
{ - The association shall treat proceeds of any sale under this
section as an asset of the association. - }
(2) A sale, transfer { + , conveyance + } or encumbrance
{ + by a security interest + } of the common property or any
portion of the common property made pursuant to a right reserved
in the declaration under this section may provide that the common
property be released from any restriction imposed on the common
property by the declaration { + or other governing document if
the request for approval of the action also includes approval of
the release + }. However, a sale, transfer or encumbrance may
not deprive any lot of its right of access to or support for the
lot without the consent of the owner of the lot.
{ + (3) Subject to subsections (4) and (5) of this section,
unless expressly limited or prohibited by the declaration, the
homeowners association may execute, acknowledge and deliver
leases, easements, rights of way, licenses and other similar
interests affecting common property and consent to vacation of
roadways within and adjacent to common property.
(4)(a) Except as otherwise provided in the declaration and
paragraph (b) of this subsection, the granting of a lease,
easement, right of way, license or other similar interest
pursuant to subsection (3) of this section shall be first
approved by at least 75 percent of owners present at a meeting of
the association or with the consent of at least 75 percent of all
owners solicited by any means the board of directors determines
is reasonable. If a meeting is held to conduct the vote, the
meeting notice must include a statement that approval of the
grant will be an item of business in the agenda of the meeting.
(b)(A) The granting of a lease, easement, right of way, license
or other similar interest affecting common property for a term of
two years or less requires the approval of a majority of the
board of directors.
(B) The granting of a lease, easement, right of way, license or
other similar interest affecting common property for a term of
more than two years to a public body, as defined in ORS 174.109,
or to a utility or a communications company for installation and
maintenance of power, gas, electric, water or other utility and
communication lines and services requires the approval of a
majority of the board of directors.
(5) Unless the declaration otherwise provides, the consent to
vacation of roadways within and adjacent to common property must
be approved first by at least a majority of owners present and
voting at a meeting of the association or with the consent of at
least a majority of all owners solicited by any means the board
of directors determines is reasonable. If a meeting is held to
conduct the vote, the meeting notice must include a statement
Enrolled Senate Bill 963 (SB 963-B) Page 17
that the roadway vacation will be an item of business in the
agenda of the meeting.
(6) An instrument that sells, transfers, conveys or encumbers
common property pursuant to subsection (1) of this section or
grants an interest or consent pursuant to subsection (3) of this
section shall:
(a) State that the action of the homeowners association was
approved in accordance with this section; and
(b) Be executed by the president and secretary of the
association and acknowledged in the manner provided for
acknowledgment of the instruments by the officers.
(7) The association shall treat proceeds of any sale, transfer
or conveyance under subsection (1) of this section, any grant
under subsection (4) of this section or any consent to vacation
under subsection (5) of this section as an asset of the
association. + }
SECTION 13. 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 and all other records of the
association for not less than the period specified for the record
in ORS 65.771 or any other applicable law except that:
(a) The documents specified in ORS 94.616 (3)(o), if received,
must be retained as permanent records of the association.
(b) Proxies and ballots must be retained for one year from the
date of determination of the vote { + , except that proxies and
ballots relating to an amendment to the declaration, bylaws or
other governing document must be retained for one year from the
date the amendment is effective + }.
(2) { + (a) + } All assessments, including declarant subsidies
{ + and all other association funds + }, shall be deposited
{ + and maintained + } in the name of the association in
{ - a - } { + one or more + } separate federally insured
{ - account - } { + accounts, including certificates of
deposit, + } at a financial institution, as defined in ORS
706.008, other than an extranational institution. { + Except as
provided in paragraph (b) of this subsection, funds must be
maintained in an association account until disbursed.
(b) Subject to any limitations imposed by the declaration or
bylaws, funds of the association maintained in accounts
established under this subsection may be used to purchase
obligations of the United States government.
(c) + } All expenses of the association shall be paid from the
association account.
(3) The association shall keep financial records sufficiently
detailed for proper accounting purposes.
{ + (4) + } Within 90 days after the end of the fiscal year,
the board of directors shall:
(a) Prepare or cause to be prepared an annual financial
statement consisting of a balance sheet and income and expenses
statement for the preceding fiscal year; and
(b) Distribute to each owner and, upon written request, any
mortgagee of a lot, a copy of the annual financial statement.
{ - (4) - } { + (5) + } Subject to section 24, chapter 803,
Oregon Laws 2003, the association of a planned community that has
annual assessments exceeding $75,000 shall cause the financial
statement required under subsection { - (3) - } { + (4) + }
of this section to be reviewed within 180 days after the end of
the fiscal year by an independent certified public accountant
licensed in the State of Oregon in accordance with the Statements
Enrolled Senate Bill 963 (SB 963-B) Page 18
on Standards for Accounting and Review Services issued by the
American Institute of Certified Public Accountants.
{ - (5) - } { + (6) + } The association of a planned
community created on or after January 1, 2004, or the association
of a planned community described in ORS 94.572 that has annual
assessments of $75,000 or less shall cause the most recent
financial statement required by subsection { - (3) - }
{ + (4) + } of this section to be reviewed in the manner
described in subsection { - (4) - } { + (5) + } of this
section within 180 days after the association receives a petition
requesting review signed by at least a majority of the owners.
{ - (6) - } { + (7) + } An association subject to the
requirements of subsection { - (4) - } { + (5) + } of this
section may elect, on an annual basis, not to comply with the
requirements of subsection { - (4) - } { + (5) + } of this
section by an affirmative vote of at least 60 percent of the
owners, not including the votes of the declarant with respect to
lots owned by the declarant.
{ - (7)(a) - } { + (8)(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.
{ - (8) - } { + (9)(a) Except as provided in paragraph (b)
of this subsection, + } the association shall make the documents,
information and records described in subsections (1) and
{ - (3) - } { + (4) + } of this section and all other records
of the association reasonably available for examination and, upon
written request, available for duplication by an owner and any
mortgagee of a lot that makes the request in good faith for a
proper purpose { + . + } { - , except that - }
{ + (b) + } Records kept by or on behalf of the association
may be withheld from examination and duplication to the extent
the records concern:
{ - (a) - } { + (A) + } Personnel matters relating to a
specific identified person or a person's medical records.
{ - (b) - } { + (B) + } Contracts, leases and other
business transactions that are currently under negotiation to
purchase or provide goods or services.
{ - (c) - } { + (C) + } Communications with legal counsel
that relate to matters specified in { - paragraphs (a) and
(b) - } { + subparagraphs (A) and (B) + } of this
{ - subsection - } { + paragraph and the rights and duties of
the association regarding existing or potential litigation or
criminal matters + }.
{ - (d) - } { + (D) + } Disclosure of information in
violation of law.
Enrolled Senate Bill 963 (SB 963-B) Page 19
{ - (e) - } { + (E) + } Documents, correspondence or
management or board reports compiled for or on behalf of the
association or the board of directors by its agents or committees
for consideration by the board of directors in executive session
held in accordance with ORS 94.640 (7).
{ - (f) - } { + (F) + } Documents, correspondence or other
matters considered by the board of directors in executive session
held in accordance with ORS 94.640 (7).
{ - (g) - } { + (G) + } Files of individual owners, other
than those of a requesting owner or requesting mortgagee of an
individual owner, including any individual owner's file kept by
or on behalf of the association.
{ - (9) - } { + (10) + } The association shall maintain a
copy, suitable for the purpose of duplication, of the following:
(a) The declaration and bylaws, including amendments or
supplements in effect, the recorded plat, if feasible, and the
association rules and regulations currently in effect.
(b) The most recent financial statement prepared pursuant to
subsection { - (3) - } { + (4) + } of this section.
(c) The current operating budget of the association.
(d) The reserve study, if any, described in ORS 94.595.
(e) Architectural standards and guidelines, if any.
{ - (10) - } { + (11) + } The association, within 10
business days after receipt of a written request by an owner,
shall furnish the requested information required to be maintained
under subsection
{ - (9) - } { + (10) + } of this section.
{ - (11) - } { + (12) + } The board of directors, by
resolution, may adopt reasonable rules governing the frequency,
time, location, notice and manner of examination and duplication
of association records and the imposition of 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 14. ORS 94.700 is amended to read:
94.700. (1) { + Except as provided in subsection (2) of this
section, + } if entered into prior to the meeting called under
ORS 94.609, no management agreement, service contract or
employment contract which is directly made by or on behalf of the
association, the board of directors or the owners as a group
shall be in excess of three years.
{ + (2)(a) Subject to paragraph (b) of this subsection, the
limitations under subsection (1) of this section do not apply to:
(A) Performance-based energy or water efficiency contracts; or
(B) Contracts relating to renewable energy facilities or output
serving the planned community, including facilities leased to the
association.
(b) A contract described in paragraph (a) of this subsection:
(A) May not have an initial term of more than 20 years; and
(B) Must be recorded with the recording officer in each county
in which the planned community is located.
(c) As used in this subsection, 'renewable energy facilities'
means facilities generating electricity, heat or cooling by means
of:
(A) Solar, wind, ocean, hydropower, biomass or geothermal
resources; or
(B) Biofuels or hydrogen derived from renewable resources. + }
{ - (2) - } { + (3) + } Any contract or agreement subject
to subsection (1) of this section and entered into after July 1,
Enrolled Senate Bill 963 (SB 963-B) Page 20
1982, may terminate without penalty to the declarant, the
association or the board of directors elected under ORS 94.616 if
the board of directors gives not less than 30 days written notice
of termination to the other party not later than 60 days after
the meeting called under ORS 94.609.
SECTION 15. 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 as specified in the
declaration pursuant to ORS 94.580 (2).
(2) If the declaration expressly authorizes deferment, the
declarant may defer payment of accrued assessments for reserves
required under ORS 94.595 for a lot subject to assessment 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.
(5)(a) Except for assessments under subsections (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 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.
(6) Unless otherwise provided in the declaration or bylaws, 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.
(7) Unless otherwise provided in the declaration or bylaws,
assessments to pay a judgment against the association may be made
only against the lots in proportion to their common expense
liabilities.
(8) If the board of directors determines that any { - common
expense - } { + loss or cost incurred by the homeowners
association + } is the fault of { - any owner - } { + one or
more owners + }, the homeowners association may assess the
{ - expense - } { + loss or cost + } exclusively against the
{ - lot of the owner - } { + lots of the responsible
owners + }.
(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.
(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.
Enrolled Senate Bill 963 (SB 963-B) Page 21
(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.
SECTION 16. ORS 94.733 is amended to read:
94.733. (1) Subject to ORS 94.665, each owner of a lot has an
easement through the common property:
(a) For access to the owner's lot; and
(b) For use of the common property consistent with the
declaration and the bylaws.
(2) Except as provided in the declaration, a declarant has an
easement through the common property as may be necessary for
discharging the declarant's obligations or exercising any special
declarant right.
(3) If an encroachment results from construction,
reconstruction, repair, shifting, settlement or movement of any
portion of the planned community, an easement for the
encroachment exists to the extent that any lot or common property
encroaches on any other lot or common property. An easement
continues for maintaining the encroachment so long as the
encroachment exists. Nothing in this section relieves an owner
of liability in case of the owner's willful misconduct or
relieves a declarant or any other person of liability for failure
to adhere to the plat of the planned community.
{ + (4)(a) Upon request given to the owner and any occupant,
any person authorized by a homeowners association may enter a
lot:
(A) To perform necessary maintenance, repair or replacement of
any property for which the association has maintenance, repair or
replacement responsibility under the declaration or bylaws or ORS
94.550 to 94.783; or
(B) To make emergency repairs to a lot that are necessary for
the public safety or to prevent damage to common property or to
another lot.
(b) Requests for entry under this subsection must be made in
advance and for a reasonable time, except in the case of an
emergency, when the right of entry is immediate. An emergency
entry does not constitute a trespass or otherwise create a right
of action in the owner of the lot. + }
SECTION 17. { + Sections 18 and 19 of this 2009 Act are added
to and made a part of ORS chapter 100. + }
SECTION 18. { + (1) Each member of the board of directors of
the association of unit owners must be an individual and, except
as provided in subsections (2) and (3) of this section, an owner
or co-owner of a unit in the condominium.
(2) A director appointed by a declarant under ORS 100.200 need
not be an owner or co-owner of a unit in the condominium.
(3)(a) Except as otherwise provided in the bylaws, prior to
election to the board of directors, an individual described in
this subsection, upon request of the board, shall provide the
board with documentation satisfactory to the board that the
individual is qualified to represent the entity or is a trustee
or is serving in a fiduciary capacity for the owner of a unit.
(b) If a corporation, limited liability company or partnership
owns a unit in the condominium or owns an interest in an entity
Enrolled Senate Bill 963 (SB 963-B) Page 22
that owns a unit in the condominium, an officer, employee or
agent of a corporation, a member, manager, employee or agent of a
limited liability company, or a partner, employee or agent of a
partnership may serve on the board of directors.
(c) A trustee may serve on the board of directors if the
trustee holds legal title to a unit in the condominium in trust
for the benefit of the owner of the beneficial interest in the
unit.
(d) An executor, administrator, guardian, conservator, or other
individual appointed by a court to serve in a fiduciary capacity
for an owner of a unit, or an officer or employee of an entity if
the person appointed is an entity, may serve on the board of
directors.
(4) The position of an individual serving on the board of
directors under subsection (3) of this section automatically
becomes vacant if the individual no longer meets the requirements
of subsection (3) of this section. + }
SECTION 19. { + (1) A zoning, subdivision, building code or
other real property law, ordinance or regulation may not prohibit
the condominium form of ownership or impose any requirement upon
a structure or development proposed to be submitted to the
condominium form of ownership under this chapter that it would
not impose upon a structure or development under a different form
of ownership.
(2) Except as set forth in this section, no provision of this
chapter invalidates or modifies any provision of any zoning,
subdivision, building code or other real property use law,
ordinance or regulation.
(3) Subsection (1) of this section does not prohibit any
governmental approval required under this chapter. + }
SECTION 20. 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) 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;
(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
Enrolled Senate Bill 963 (SB 963-B) Page 23
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)(a) 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.
(b) ORS 100.635 (2), 100.640 (8) to (12), 100.655, 100.705,
100.720, 100.725, 100.730, 100.735, 100.740 and 100.745 do not
apply to the sale of units to be used for nonresidential purposes
{ + as provided in subsection (5) of this section + } unless
the units, including units used for parking or storage, are
ancillary to the sale of units to be used for residential
purposes.
(5) { + (a) + } 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 a condominium located in this state that consists
exclusively of units to be used for nonresidential purposes or
that consists of units to be offered for sale as a security under
ORS 59.005 to 59.451.
{ + (b) As used in this subsection, 'nonresidential purposes
' includes apartments within a condominium in which the
apartments are not separate units or units that are restricted in
use by the unit owner to less than full-time residential
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.
(7) Unless the declaration or bylaws provide otherwise, a
condominium unit may be submitted to the condominium form of
ownership under ORS 100.005 to 100.625.
{ + (8) If an association creates not more than two
additional units from common elements by an amendment to the
declaration under ORS 100.135, then ORS 100.635 (2), 100.640 (8)
to (12), 100.655, 100.705, 100.720, 100.725, 100.730, 100.735 and
100.745 do not apply to the sale of the units by the
association. + }
SECTION 21. ORS 100.135 is amended to read:
100.135. (1) Unless otherwise provided in the declaration, an
amendment to the declaration may be proposed by a majority of the
board of directors of the association of unit owners or by at
least 30 percent of the unit owners.
(2) Except as otherwise provided in ORS 100.005 to 100.625, an
amendment of the declaration is not effective unless:
(a) 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) The amendment, 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
Enrolled Senate Bill 963 (SB 963-B) Page 24
acknowledged in the manner provided for acknowledgment of deeds,
is recorded notwithstanding a provision in a declaration,
including a declaration recorded before January 1, 2002, that
requires amendments to be executed and acknowledged by all owners
approving the amendment.
(3) Except as otherwise provided in ORS 100.105 or 100.130 or
this section, the declaration may be amended only with the
approval of at least 75 percent of owners, or such greater
percentage as may be required by the declaration.
(4) 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 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.
(5)(a) { + (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 { + or creates an additional unit from common elements + }
shall be approved by all unit owners.
{ + (B) + } { - Such - } { + The + } amendment
{ - shall constitute - } { + constitutes + } a conveyance and
shall include words of conveyance { + and, if an additional unit
is created from common elements, shall state the name of the
grantee and unit designation. If an additional unit is created
from common elements, the association shall be named as the
initial grantee of the additional unit + }.
{ + (C) + } In addition to the certification required under
subsection (2)(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 - }
{ + constitutes + } a conveyance and shall:
(A) Be approved by at least 75 percent of 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 (2)(b) of this section; and
(D) Be accompanied by a plat amendment in accordance with
{ - ORS 100.115 - } { + section 43 of this 2009 Act + }.
(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.
(6) Except as otherwise provided in ORS 100.005 to 100.625, an
amendment may not change the allocation of undivided interest in
the common elements, the method of determining liability for
common expenses, the method of determining the right to common
profits or the method of determining voting rights of any unit
unless such amendment has been approved by the owners of the
affected units.
(7) 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
Enrolled Senate Bill 963 (SB 963-B) Page 25
declarant. However, the declarant may waive the declarant's right
of consent.
(8) Nothing in this section shall affect any other approval
that may be required by the declaration, bylaws or other
instrument.
(9) During a period of declarant control reserved under ORS
100.200, voting on an amendment under this section must be
without regard to any weighted vote or other special voting
allocation reserved by the declarant unless the declaration
provides that the declarant has the right to exercise the voting
rights with respect to specifically described amendments. Nothing
in this subsection prohibits a declarant from reserving the right
that declarant's consent is required for an amendment during a
period of declarant control reserved in the declaration.
(10) 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.
(11)(a) The board of directors, by resolution and without the
further approval of the unit owners, may cause a restated
declaration to be prepared and recorded to codify individual
amendments that have been adopted in accordance with this
section.
(b) A declaration restated under this subsection must:
(A) Include all previously adopted amendments that are in
effect and may not include any other changes except to correct
scriveners' errors or to conform format and style;
(B) Include a statement that the board of directors has adopted
a resolution in accordance with paragraph (a) of this subsection
and is causing the declaration to be restated and recorded under
this subsection;
(C) Include a reference to the recording index numbers and date
of recording of the initial declaration and all previously
recorded amendments that are in effect and are being codified;
(D) Include a certification by the chairperson and secretary of
the association that the restated declaration includes all
previously adopted amendments that are in effect, that amendments
were approved by the county assessor and tax collector if
required under ORS 100.110 and that no other changes were made
except, if applicable, to correct scriveners' errors or to
conform format and style;
(E) Be executed and acknowledged by the chairperson and
secretary of the association and recorded in the deed records of
each county in which the condominium is located; and
(F) Be approved by the commissioner, and by the county assessor
and the tax collector under ORS 100.110 if the restated
declaration includes any amendments required to be approved by
the county assessor and the tax collector under ORS 100.110 but
not previously approved.
(c) The board of directors shall cause a copy of the recorded
restated declaration, including the recording information, to be
filed with the commissioner.
SECTION 22. ORS 100.155 is amended to read:
Enrolled Senate Bill 963 (SB 963-B) Page 26
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 - } { + becomes + } part of the common
elements and any interest in { - such - } { + the + }
property held for security purposes { - shall be - }
{ + is + } automatically extinguished by reclassification.
(b) Any property designated withdrawable variable property
shall be automatically withdrawn from the condominium as of 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
Enrolled Senate Bill 963 (SB 963-B) Page 27
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 - } { + vests + } in the association upon the recording
of a supplemental declaration and plat. The board of directors
acting on behalf of the association
{ - shall have - } { + has + } 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).
{ + (6) The county assessor shall cause the assessment and
tax rolls to reflect the status of any variable property affected
by automatic property reclassification under subsection (1)(a) of
this section or automatically withdrawn under subsection (1)(b)
of this section. + }
SECTION 23. ORS 100.175 is amended to read:
100.175. (1) The declarant, on behalf of the association of
unit owners, shall:
(a) Conduct an initial reserve study as described in subsection
(3) of this section;
(b) Prepare an initial maintenance plan as described in
subsection (4) of this section; and
(c) Establish a reserve account as provided in subsection (2)
of this section.
(2)(a) A reserve account shall be established to fund major
maintenance, repair or replacement of those common elements all
or part of which will normally require major maintenance, repair
or replacement in more than one 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) Items that can reasonably be funded from the general budget
or other funds or accounts of the association; or
(B) A reserve for limited common elements for which maintenance
and replacement are the responsibility of one or more, but less
than all, unit owners under the provisions of the declaration or
bylaws.
(b) The reserve account shall be established in the name of the
association of unit owners. The association is responsible for
administering the account and for making periodic payments into
the account.
(c) The reserve portion of the initial assessment determined by
the declarant shall be based on:
Enrolled Senate Bill 963 (SB 963-B) Page 28
(A) The reserve study described in subsection (3) of this
section;
(B) In the case of a conversion condominium, the statement
described in ORS 100.655 (1)(g); or
(C) Other reliable information.
(d) The reserve account must be funded by assessments against
the individual units for the purposes for which the reserve
account is established.
(e) The assessment under this subsection accrues from the time
of the conveyance of the first individual unit assessed as
provided in ORS 100.530.
(3)(a) The board of directors of the association annually shall
conduct a reserve study or review and update an existing study to
determine the reserve account requirements { + . + } { - and
may - } { + Subject to subsection (1) of this section, after a
review of the reserve study or the reserve study update, the
board may, without any action by the unit owners + }:
(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.
(b) The reserve study shall:
(A) Identify all items for which reserves are or will be
established;
(B) Include the estimated remaining useful life of each item as
of the date of the reserve study; and
(C) Include for each item, as applicable, an estimated cost of
maintenance and repair and replacement at the end of the item's
useful life.
(4)(a) The board of directors shall prepare a maintenance plan
for the maintenance, repair and replacement of all property for
which the association has maintenance, repair or replacement
responsibility under the declaration or bylaws or this chapter.
The maintenance plan shall:
(A) Describe the maintenance, repair and replacement to be
conducted;
(B) Include a schedule for the maintenance, repair and
replacement;
(C) Be appropriate for the size and complexity of the
maintenance, repair and replacement responsibility of the
association; and
(D) Address issues that include but are not limited to
warranties and the useful life of the items for which the
association has maintenance, repair or replacement
responsibility.
(b) The board of directors shall review and update the
maintenance plan described under this subsection as necessary.
(5)(a) Except as provided in paragraph (b) of this subsection,
the reserve study requirements under subsection (3) of this
section and the maintenance plan requirements under subsection
(4) of this section do not apply to a condominium consisting of
one or two units, excluding units used for parking, storage or
other uses ancillary to a unit:
(A) After the sale of the first unit to a person other than a
successor declarant, if the condominium is created on or after
September 27, 2007; or
(B) If the condominium was created before September 27, 2007,
notwithstanding any requirement in the declaration or bylaws.
(b) The reserve study requirements under subsection (3) of this
section and the maintenance plan requirements under subsection
Enrolled Senate Bill 963 (SB 963-B) Page 29
(4) of this section apply to a flexible condominium or a staged
condominium created on or after September 27, 2007, if the
condominium might in the future consist of more than two units.
(6)(a) If the declaration or bylaws require a reserve account,
the reserve study requirements of subsection (3) of this section
and the maintenance plan requirements of subsection (4) of this
section first apply to the association of a condominium recorded
prior to October 23, 1999:
(A) Upon adoption of a resolution by the board of directors in
accordance with the bylaws providing that the requirements of
subsections (3) and (4) 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 subsections (3) and (4) of this section apply to
the association.
(b) The reserve study and the maintenance plan shall be
completed within one year of the date of adoption of the
resolution or submission of the petition to the board of
directors.
(7)(a) Except as provided in paragraph (b) of this subsection,
the reserve account is to be used only for the purposes for which
reserves have been established and is to be kept separate from
other funds.
(b) After the individual unit owners have assumed
administrative responsibility for the association under ORS
100.210, if the board of directors has adopted a resolution,
which may be an annual continuing resolution, authorizing the
borrowing of funds:
(A) The board of directors may borrow funds from the reserve
account to meet high seasonal demands on the regular operating
funds or to meet unexpected increases in expenses.
(B) 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.
(8) { - Restrictions on the use of - } The reserve account
{ - do not prohibit its prudent investment subject to any
constraints on investment of association funds - } { + is
subject to the requirements and restrictions of ORS 100.480 and
any additional requirements or restrictions + } imposed by the
declaration, bylaws or rules of the association of unit owners.
(9) Assessments paid into the reserve account are the property
of the association of unit owners and are not refundable to
sellers of units.
{ - (10) In addition to the authority of the board of
directors under subsection (3)(a) 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. - }
{ + (10)(a) Except as provided under paragraph (b) of this
subsection, unless the board of directors under subsection (3) of
this section determines that the reserve account will be
adequately funded for the following year, the board of directors
or the owners may not vote to eliminate funding a reserve account
required under this section or under the declaration or bylaws.
Enrolled Senate Bill 963 (SB 963-B) Page 30
(b) Following the turnover meeting described in ORS 94.609, on
an annual basis, the board of directors, with the approval of all
owners, may elect not to fund the reserve account for the
following year. + }
SECTION 24. 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 of a
condominium created on or after September 27, 2007, shall be
organized as a corporation for profit or nonprofit corporation
or, if the condominium consists of not more than four units,
excluding units used for parking, storage or other use ancillary
to a unit, as an unincorporated association. - }
{ + (b) The association of a condominium created on or after
September 27, 2007, shall be organized:
(A) As a corporation for profit or a nonprofit corporation; or
(B) If the condominium consists of four or fewer units,
excluding units used for parking, storage or other use ancillary
to a unit, as an unincorporated association, corporation for
profit or a nonprofit corporation.
(c) + } If the association is incorporated, the name of the
association shall include the complete name of the condominium.
{ - (b) - } { + (d) + } Notwithstanding a provision in the
declaration or bylaws of a condominium created before September
27, 2007, that states that the association shall be
unincorporated or that requires approval of owners to incorporate
as a nonprofit corporation under ORS chapter 65, an
unincorporated association may be incorporated as a nonprofit
corporation under ORS chapter 65 if the board of directors adopts
a resolution that states the association will be incorporated.
{ + (e) A separate association is not created when an
unincorporated association formed under this section is
incorporated, reinstated after administrative dissolution under
ORS 60.654 or 65.654 or again incorporated following dissolution.
The association automatically continues and, without any further
action by incorporators, directors or officers that may otherwise
be required under Oregon corporation laws:
(A) The incorporated association has all of the property,
powers and obligations of the association that existed
immediately prior to incorporation in addition to the powers and
obligations under Oregon corporation laws.
(B) The bylaws in effect immediately prior to incorporation or
reinstatement constitute the bylaws of the incorporated
association.
(C) The members of the board of directors and the officers
continue to serve as directors and officers.
(f) If an incorporated association is at any time dissolved,
whether inadvertently or deliberately:
(A) The association continues as an unincorporated association
under the same name.
(B) The unincorporated association has all of the property,
powers and obligations of the incorporated association existing
immediately prior to dissolution.
(C) The unincorporated association shall be governed by the
bylaws, and to the extent applicable, the articles of
incorporation of the incorporated association.
(D) The board of directors and the officers serving immediately
prior to the dissolution continue to serve as the directors and
officers of the unincorporated association. + }
Enrolled Senate Bill 963 (SB 963-B) Page 31
(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 declarations and bylaws;
(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 convey 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 written
notice and an opportunity to be heard, levy reasonable fines for
violations of the declaration, bylaws and rules and regulations
of the association, provided that the charge imposed or fine
levied by the association is based:
(A) 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
Enrolled Senate Bill 963 (SB 963-B) Page 32
(B) 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 that must provide for written notice and an opportunity to
be heard before the association may terminate the rights of any
owners to receive such benefits or services until the correction
of any violation covered by the 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 and deliver 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)(a)(A) Except as provided in subparagraph (B) of this
paragraph, the granting of a lease, easement, right of way,
license or other similar interest pursuant to subsection (5) of
this section shall be first approved by at least 75 percent of
owners { + present at a meeting of the association or with the
consent of at least 75 percent of all owners solicited by any
means the board of directors determines is reasonable + }.
{ - Unit owner approval may be solicited by any means the board
of directors determines is reasonable and need not be at a
meeting of the association. - } { + If a meeting is held to
conduct the vote, the meeting notice must include a statement
that the approval of the grant will be an item of business on the
agenda of the meeting. + }
(B) Unless the declaration otherwise provides:
(i) The granting of a lease, easement, right of way, license or
other similar interest affecting the general common elements for
a term of two years or less shall require the approval of a
majority of the board of directors.
(ii) The granting of a lease, easement, right of way, license
or other similar interest affecting the general common elements
for a term of more than two years to a public body, as defined in
ORS 174.109, or to a utility or a communications company for
installation and maintenance of power, gas, electric, water or
other utility and communication lines and services requires the
approval of a majority of the board of directors.
Enrolled Senate Bill 963 (SB 963-B) Page 33
(iii) The granting of a lease, easement, license or other
similar interest to an owner for the exclusive use of a part of
the general common elements to which the owner's unit provides
primary access requires the approval of a majority of the board
of directors. If the approval by the board of directors includes
the right of the owner to make improvements to the general common
elements to which the owner is being granted exclusive use, ORS
100.535 applies to the general common elements to the same extent
that ORS 100.535 applies to a unit, including the right of the
board under ORS 100.535 to require an owner, at owner's expense,
to submit an opinion of a registered architect or registered
professional engineer that the proposed improvement will not
impair the structural integrity or mechanical systems of the
condominium.
(b) Unless the declaration otherwise provides, the consent to
vacation of roadways within and adjacent to the condominium must
be approved first by at least a majority of unit owners present
{ + and + } voting { - in person or by proxy - } at a
{ - duly constituted - } meeting of the association
{ - called for the purpose. - } { + or with consent of at
least a majority of all owners solicited by any means the board
of directors determines is reasonable. If a meeting is held to
conduct the vote, the meeting notice must include a statement
that the roadway vacation will be an item of business on the
agenda of the meeting. + }
(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 the percent of owners
required under subsection (6) of this section.
(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 held in accordance with the
declaration, 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
Enrolled Senate Bill 963 (SB 963-B) Page 34
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
Enrolled Senate Bill 963 (SB 963-B) Page 35
to delay or to litigation or an administrative proceeding
initiated to collect assessments, other than assessments
attributable to fines.
SECTION 25. ORS 100.408 is amended to read:
100.408. (1) Unless the bylaws { - provide otherwise - }
{ + specify a greater percentage + }, a quorum for any meeting
of the association of unit owners consists of the number of
persons who are entitled to cast 20 percent of the voting rights
and who are present in person, by proxy or by absentee ballot, if
absentee ballots are permitted by the board of directors, at the
beginning of the meeting.
(2) If any meeting of the association of unit owners cannot be
organized because of a lack of a quorum, the unit owners who are
present, either in person or by proxy, may adjourn the meeting
{ + from time to time until a quorum is present + }.
{ + (3) Subject to subsection (4) of this section, + } the
quorum for a { - subsequent - } meeting { + following a
meeting adjourned for lack of a quorum + } is the greater of:
(a) One-half of the quorum required in the bylaws; or
(b) { - The quorum required in subsection (1) of this
section. - } { + Twenty percent of the votes that may be cast by
persons who are present in person, by proxy or by absentee
ballot, if absentee ballots are permitted.
(4) The quorum is not reduced under subsection (3) of this
section unless:
(a) The meeting is adjourned to a date that is at least 48
hours from the date the original meeting was called; or
(b) The meeting notice specifies:
(A) The quorum requirement will be reduced if the meeting
cannot be organized because of a lack of a quorum; and
(B) The reduced quorum requirement. + }
SECTION 26. ORS 100.409 is amended to read:
100.409. { + (1) + } 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 26a. ORS 100.410 is amended to read:
100.410. (1) The declarant shall adopt on behalf of the
association of unit owners the initial bylaws that govern the
administration of the condominium. The bylaws shall be recorded
simultaneously with the declaration 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.
Enrolled Senate Bill 963 (SB 963-B) Page 36
(3) Subject to subsections (4) and (5) of this section and ORS
100.415 (1)(t), an amendment of the bylaws is not effective
unless the amendment is:
(a) Approved by at least a majority of the unit owners; and
(b) Certified by the chairperson and secretary of the
association of unit owners as being adopted in accordance with
the bylaws and the provisions of this section, acknowledged in
the manner provided for acknowledgment of instruments and
recorded.
(4) In condominiums that are exclusively residential:
(a) The bylaws may not provide that greater than a majority of
the unit owners 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.
(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.
(6)(a) For five years after the recording of the initial
bylaws, before any amended bylaw may be recorded, the amended
bylaw 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.
(b) The approval by the commissioner under paragraph (a) of
this subsection is not required for bylaws restated under
subsection (10) of this section unless the bylaws are restated
during the five-year period after the recording of the initial
bylaws.
(c) If the amended bylaw approved by the commissioner under
this subsection is not recorded as required in subsection (3) of
this section within { - two years - } { + one year + } from
the date of approval by the commissioner, the approval
automatically expires and the amended bylaw must be resubmitted
for approval as provided in this section. The commissioner's
approval shall set forth the date on which the approval expires.
(7) Before the commissioner approves amended bylaws or restated
bylaws under this section, the person submitting the amended
bylaws or restated bylaws shall pay to the commissioner the fee
provided by ORS 100.670.
(8) Notwithstanding a provision in the bylaws, including bylaws
adopted prior to July 14, 2003, that requires an amendment to be
executed, or executed and acknowledged, by all owners approving
the amendment, amendments to the bylaws under this section become
effective after approval by the owners if executed and certified
on behalf of the association by the chairperson and secretary in
accordance with subsection (3)(b) of this section.
(9) An amendment to the bylaws must be conclusively presumed to
have been regularly adopted in compliance with all applicable
procedures relating to the amendment unless an action is brought
within one year after the effective date of the amendment or the
face of the amendment indicates that the amendment received the
approval of fewer votes than required for the approval. Nothing
in this subsection prevents the further amendment of an amended
bylaw.
Enrolled Senate Bill 963 (SB 963-B) Page 37
(10)(a) The board of directors, by resolution and without the
further approval of unit owners, may cause restated bylaws to be
prepared and recorded to codify individual amendments that have
been adopted in accordance with this section.
(b) Bylaws restated under this subsection must:
(A) Include all previously adopted amendments that are in
effect, state that the amendments were approved by the
commissioner as required under this section and state that no
other changes were made except, if applicable, to correct
scriveners' errors or to conform format and style;
(B) Include a statement that the board of directors has adopted
a resolution in accordance with paragraph (a) of this subsection
and is causing the bylaws to be restated and recorded under this
subsection;
(C) Include a reference to the recording index numbers and date
of recording of the initial bylaws and all previously recorded
amendments that are in effect and are being codified;
(D) Include a certification by the chairperson and secretary of
the association that the restated bylaws include all previously
adopted amendments that are in effect, that amendments were
approved by the commissioner if required under this section and
that no other changes were made except, if applicable, to correct
scriveners' errors or to conform format and style;
(E) Be executed and acknowledged by the chairperson and
secretary of the association and recorded in the deed records of
each county in which the condominium is located; and
(F) If required under subsection (6) of this section, be
approved by the commissioner.
(c) The board of directors shall cause a copy of the recorded
restated bylaws, including the recording information, to be filed
with the commissioner.
SECTION 27. ORS 100.415 is amended to read:
100.415. (1) The bylaws shall include a reference to the
declaration to which the bylaws relate and shall provide for:
(a) 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.
(b) If required under ORS 100.205, the formation of a
transitional committee in accordance with such section.
(c) 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.
(d)(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 constitutes a quorum
{ + under ORS 100.408 + }.
(e)(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;
(E) The method of removal from office of directors; and
(F) The method of filling vacancies on the board.
(f) 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.
Enrolled Senate Bill 963 (SB 963-B) Page 38
(g) The election of a chairperson, a secretary, a treasurer and
any other officers of the association.
(h) The preparation and adoption of a budget in accordance with
ORS 100.412.
(i)(A) The maintenance, repair and replacement of the common
elements and association property;
(B) Payment for the expense 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.
(j) The employment of personnel necessary for the maintenance
and repair of the common elements.
(k) The manner of collecting assessments from the unit owners.
(L) Insurance coverage in accordance with ORS 100.435 and the
responsibility for payment of the amount of the deductible in an
association insurance policy.
(m) The preparation and distribution of the annual financial
statement in accordance with ORS 100.480.
(n) The reserve account and the preparation, review and update
of the reserve study and the maintenance plan required under ORS
100.175.
(o) The filing of an Annual Report and any amendment with the
Real Estate Agency in accordance with ORS 100.250.
(p) 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.
(q) 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.
(r) 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.
(s) The method of amending the bylaws in accordance with ORS
100.410.
(t) 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.
(u) 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.
(2) The bylaws may provide that the responsibility for payment
of the amount of the deductible may be prescribed by resolution
adopted by the board of directors.
SECTION 28. 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 - } { + board may close the meeting to unit
owners and meet + } in executive session { + to + }:
(A) { - Consultation - } { + Consult + } with legal counsel
{ - concerning the rights and duties of the association
regarding existing or potential litigation, or criminal
matters - } ; { + and + }
(B) { + Consider the following:
Enrolled Senate Bill 963 (SB 963-B) Page 39
+ } { + (i) + } Personnel matters, including salary
negotiations and employee discipline;
{ - (C) - } { + (ii) + } Negotiation of contracts with
third parties; and
{ - (D) - } { + (iii) + } Collection of unpaid assessments.
(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, as precisely as possible, when and under what
circumstances the deliberations can be disclosed to owners. The
statement, motion or decision to meet in executive session must
be included in the minutes of the meeting.
(c) A contract or an action considered in executive session
does not become effective unless the board of directors,
following the executive session, reconvenes in open meeting and
votes on the contract or action, which must be reasonably
identified in the open meeting and included in the minutes.
(d) 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 or by the use of a means of communication that
allows all members of the board of directors participating to
hear each other simultaneously or otherwise to be able to
communicate during the meeting. A member of the board of
directors participating in a meeting by this means is deemed to
be present in person at the meeting.
(3) In condominiums where the majority of the units are the
principal residences of the occupants, meetings of the board of
directors shall comply with the following:
(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 or in a manner described in
subsection (2) of this section.
(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.
(5) As used in this section, 'meeting' means a convening of a
quorum of members of the board of directors { - where matters
relating to - } { + at which + } association business
{ - are - } { + is + } discussed, except a convening of a
quorum of members of the board of directors for the purpose of
participating in litigation, mediation or arbitration
proceedings.
SECTION 29. ORS 100.480 is amended to read:
100.480. (1) An association of unit owners shall retain within
this state the documents, information and records delivered to
the association under ORS 100.210 and all other records of the
association for not less than the period specified for the record
in ORS 65.771 or any other applicable law, except that:
Enrolled Senate Bill 963 (SB 963-B) Page 40
(a) The documents specified in ORS 100.210 (5)(j), if received,
must be retained as permanent records of the association.
(b) Proxies and ballots must be retained for one year from the
date of determination of the vote { + , except proxies and
ballots relating to an amendment to the declaration, supplemental
declaration plat, supplemental plat or bylaws must be retained
for one year from the date the amendment is recorded + }.
(2) The association of unit owners shall keep financial records
sufficient for proper accounting purposes.
{ + (3)(a) + } All assessments { + and other association
funds + } shall be deposited { + and maintained + } in the name
of the association in { - a - } { + one or more + } separate
federally insured { - account - } { + accounts, including
certificates of deposit, + } at a financial institution, as
defined in ORS 706.008, other than an extranational institution.
{ + Except as provided in paragraph (b) of this subsection,
funds must be maintained in an association account until
disbursed.
(b) Subject to any limitations imposed by the declaration or
bylaws, association funds maintained in accounts established
under this subsection may be used to purchase obligations issued
by the United States government.
(c) + } All expenses of the association shall be paid from the
association account.
{ - (3) - } { + (4) + } Within 90 days after the end of the
fiscal year, the board of directors shall:
(a) Prepare or cause to be prepared an annual financial
statement consisting of a balance sheet and income and expenses
statement for the preceding fiscal year; and
(b) Distribute to each unit owner a copy of the annual
financial statement.
{ - (4) - } { + (5) + } Subject to section 26, chapter 803,
Oregon Laws 2003, the association of unit owners of a condominium
that has annual assessments exceeding $75,000 shall cause the
financial statement required under subsection { - (3) - }
{ + (4) + } of this section to be reviewed within 180 days after
the end of the fiscal year by an independent certified public
accountant licensed in the State of Oregon in accordance with the
Statements on Standards for Accounting and Review Services issued
by the American Institute of Certified Public Accountants.
{ - (5) - } { + (6) + } The association of unit owners of a
condominium that has annual assessments of $75,000 or less shall
cause the most recent financial statement required by subsection
{ - (3) - } { + (4) + } of this section to be reviewed in the
manner described in subsection { - (4) - } { + (5) + } of
this section within 180 days after the board of directors
receives the petition requesting review signed by at least a
majority of the owners.
{ - (6) - } { + (7) + } An association of unit owners
subject to the requirements of subsection { - (4) - }
{ + (5) + } of this section may elect, on an annual basis, not
to comply with the requirements of subsection
{ - (4) - } { + (5) + } of this section by an affirmative
vote of at least 60 percent of the owners, not including the
votes of the declarant with respect to units owned by the
declarant.
{ - (7)(a) - } { + (8)(a) + } The association shall
provide, within 10 business days of receipt of a written request
from an owner, a written statement that provides:
Enrolled Senate Bill 963 (SB 963-B) Page 41
(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.
{ - (8)(a) - } { + (9)(a) + } Except as provided in
paragraph (b) of this subsection, the documents, information and
records described in subsections (1) { - to (3) - } { + to
(4) + } of this section and all other records of the association
of unit owners must be reasonably available for examination and,
upon written request, available for duplication by a unit owner
and any mortgagee of a unit that makes the request in good faith
for a proper purpose.
(b) Records kept by or on behalf of the association may be
withheld from examination and duplication to the extent the
records concern:
(A) Personnel matters relating to a specific identified person
or a person's medical records.
(B) Contracts, leases and other business transactions that are
currently under negotiation to purchase or provide goods or
services.
(C) Communications with legal counsel that relate to matters
specified in subparagraphs (A) and (B) of this paragraph { + and
the rights and duties of the association regarding existing or
potential litigation or criminal matters + }.
(D) Disclosure of information in violation of law.
(E) Documents, correspondence or management or board reports
compiled for or behalf of the association or the board of
directors by its agents or committees for consideration by the
board of directors in executive session held in accordance with
ORS 100.420 (1).
(F) Documents, correspondence or other matters considered by
the board of directors in executive session held in accordance
with ORS 100.420 (1).
(G) Files of individual owners, other than those of a
requesting owner or requesting mortgagee of an individual owner,
including any individual owner's file kept by or on behalf of the
association.
{ - (9) - } { + (10) + } The association of unit owners
shall maintain a copy, suitable for the purpose of duplication,
of the following:
(a) The declaration and bylaws, including amendments or
supplements in effect, the recorded plat, if feasible, and the
association rules and regulations currently in effect;
(b) The most recent annual financial statement prepared in
accordance with subsection { - (3) - } { + (4) + } of this
section;
(c) The current operating budget of the association;
(d) The reserve study, if any, described in ORS 100.175; and
(e) Architectural standards and guidelines, if any.
Enrolled Senate Bill 963 (SB 963-B) Page 42
{ - (10) - } { + (11) + } The association, within 10
business days after receipt of a written request by an owner,
shall furnish the requested information required to be maintained
under subsection
{ - (9) - } { + (10) + } of this section.
{ - (11) - } { + (12) + } The board of directors, by
resolution, may adopt reasonable rules governing the frequency,
time, location, notice and manner of examination and duplication
of association records and the imposition of 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.
{ - (12) - } { + (13) + } Subsection { - (3) - }
{ + (4) + } 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) - } { + (4) + } of this section.
SECTION 30. ORS 100.485 is amended to read:
100.485. (1) { + Except as provided in subsection (2) of this
section, + } if entered into prior to the turnover meeting of the
condominium, no management agreement, service contract or
employment contract that is directly made by or on behalf of the
association, the board of directors or the unit owners as a group
shall be in excess of three years.
{ + (2)(a) Subject to paragraph (b) of this subsection, the
limitations under subsection (1) of this section do not apply to:
(A) Performance-based energy or water efficiency contracts; or
(B) Contracts relating to renewable energy facilities or output
serving the condominium, including facilities leased to the
association.
(b) A contract described in paragraph (a) of this subsection:
(A) May not have an initial term of more than 20 years; and
(B) Must be recorded with the recording officer in each county
in which the condominium is located.
(c) As used in this subsection, 'renewable energy facilities'
means facilities generating electricity, heat or cooling by means
of:
(A) Solar, wind, ocean, hydropower, biomass or geothermal
resources; or
(B) Biofuels or hydrogen derived from renewable resources. + }
{ - (2) - } { + (3) + } Any contract or agreement that is
subject to subsection (1) of this section entered into after
January 1, 1982, may be terminated without penalty by the
association or the board of directors upon not less than 30 days'
written notice to the other party given not later than 60 days
after the turnover meeting.
{ - (3) - } { + (4) + } The provisions of the Condominium
and Cooperative Abuse Relief Act of 1980 (15 U.S.C. 3601 to
3616), except for 15 U.S.C. 3609 and 3610, shall not apply in the
State of Oregon.
SECTION 31. ORS 100.510 is amended to read:
100.510. { - (1) - } Unless otherwise provided in the
declaration { - , - } { + :
(1) + } The walls, floors and ceilings are the boundaries of a
unit.
(2) All lath, furring, wallboard, plaster-board, plaster,
paneling, tiles, wallpaper, paint, finished flooring and any
Enrolled Senate Bill 963 (SB 963-B) Page 43
other materials constituting any part of the finished surfaces
thereof
{ - shall be - } { + are + } a part of the unit except those
portions of the walls, floors or ceilings that materially
contribute to the structural or shear capacity of the
condominium. All other portions of the walls, floors or ceilings
{ - shall be - } { + are + } a part of the common elements.
(3) The following { - shall be - } { + are + } a part of
the unit:
(a) All spaces, nonbearing interior partitions, interior doors
and all other fixtures and improvements within the boundaries of
the unit;
(b) The glazing and screening of windows and unit access doors;
and
(c) All outlets of utility service lines, including but not
limited to power, light, gas, hot and cold water, heating,
refrigeration, air conditioning and waste disposal within the
boundaries of the unit.
SECTION 32. ORS 100.525 is amended to read:
100.525. (1) Unless otherwise provided in the declaration, each
unit of a condominium { - shall be - } { + is + } entitled to
one vote.
(2) Unless otherwise provided in the declaration or bylaws:
(a) An { + attorney-in-fact, + } executor, administrator,
guardian { + , conservator + } or trustee may vote or grant
consent with respect to a unit owned or held in a fiduciary
capacity { - , whether or not the specific right has been
transferred to the fiduciary - } , if the person satisfies the
secretary that the person is the { + attorney-in-fact, + }
executor, administrator, guardian { + , conservator + } 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 of the unit
may be exercised by any one of the owners, 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 33. 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:
(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
Enrolled Senate Bill 963 (SB 963-B) Page 44
(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.
(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.
(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 - } { + may + } 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 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.
{ + (6) If the board of directors determines that any loss or
cost incurred by the association is the fault of one or more
owners, the association may assess the amount of the loss or cost
exclusively against the units of the responsible owners. + }
SECTION 34. ORS 100.540 is amended to read:
100.540. (1) Each unit owner may use the common elements in
accordance with the purposes for which they are intended, but may
not hinder or encroach upon the lawful rights of the other unit
owners.
(2) Unless otherwise provided in the declaration or bylaws:
(a) The responsibility for maintenance, repair and replacement
of the common elements is the responsibility of the association
of unit owners; and
Enrolled Senate Bill 963 (SB 963-B) Page 45
(b) The cost of maintenance, repair and replacement is a common
expense of the association.
(3) The necessary work of maintenance, repair and replacement
of the common elements and additions or improvements to the
common elements shall be carried out only as provided in the
bylaws.
(4) { + (a) Upon request given to the owner and any
occupant, + } { - the association of unit owners - } { + any
person authorized by the association may enter a + } { - shall
have the right to have access to each - } unit { + and any
limited common element appertaining to a unit:
(A) + } As may be necessary for the maintenance, repair or
replacement of the common elements { - , - } { + or any unit
for which the association has maintenance, repair or replacement
responsibility under the declaration or bylaws or this
chapter; + } or
{ + (B) + } To make emergency repairs { - therein - }
{ + to the unit or common elements + } necessary for the public
safety or to prevent damage to the common elements or to another
unit.
{ + (b) Requests for entry under this subsection must be made
in advance and for a reasonable time, except in the case of an
emergency, when the right of entry is immediate. An emergency
entry does not constitute a trespass or otherwise create any
right of action in the owner of a unit. + }
SECTION 35. 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 assessor and the county
surveyor + }. { - 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 - } { + are + } not
{ - be - } allowed on the original plat once it is recorded
with the county clerk.
Enrolled Senate Bill 963 (SB 963-B) Page 46
(e) Failure to file the copies as required under paragraph (d)
of this subsection { - shall - } { + does + } 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 - } { + and 100.135 and section 43 of this 2009
Act + }. 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 { + allocation of + } interest of each unit
{ - owner and lienholder - } in the { - condominium - }
{ + common elements + } after the removal;
(e) Be approved and executed by { - all owners and
lienholders - } { + the owner of any unit being removed and the
owner of any unit to which a limited common element being removed
pertains + } and acknowledged in the manner provided for
acknowledgment of deeds;
{ - and - }
{ + (f) Be approved by the holder of any first mortgage on a
unit or limited common element being removed;
(g) Be approved by at least 90 percent of owners, including any
owner whose approval is required under paragraph (e) of this
subsection;
(h) Be approved by any other mortgagees whose approval is
required under the declaration or bylaws;
(i) Include any other approvals required by the declaration or
bylaws; and + }
{ - (f) - } { + (j) + } Include 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 (9) and (10) - } { +
section 43 of this 2009 Act + };
(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 - } { + The + } 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.
SECTION 36. 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
Enrolled Senate Bill 963 (SB 963-B) Page 47
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) - } { +
(1) + }.
(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.
(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.
(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) - } { + (1) + }.
(e) A notice in substantially the following form in at least
12-point type that is either all capitals or boldface:
_________________________________________________________________
NOTICE
THE SQUARE FOOTAGE AREAS STATED IN THIS DECLARATION AND THE
PLAT ARE BASED ON THE BOUNDARIES OF THE UNITS AS DESCRIBED IN
THIS DECLARATION AND MAY VARY FROM THE AREA OF UNITS CALCULATED
FOR OTHER PURPOSES.
_________________________________________________________________
(f) A description of the general common elements.
(g) 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.
(h) 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.
(i) The method of determining liability for common expenses and
right to common profits in accordance with ORS 100.530.
(j) 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.
(k) A statement of the use, residential or otherwise, for which
the building or buildings and each of the units is intended.
(L) 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).
(m) The method of amending the declaration and the percentage
of voting rights required to approve an amendment of the
declaration in accordance with ORS 100.135.
Enrolled Senate Bill 963 (SB 963-B) Page 48
(n) A statement as to whether or not the association of unit
owners 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.
(o) 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.
(p) 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.
(q) 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, 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)(g), (i) and (j) 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 { + and section 43 of
this 2009 Act + }.
(3) Except where expressly prohibited by the declaration and
subject to the requirements of ORS 100.135 (2) and subsections
(9) and (10) of this section:
(a) Not later than two years following the termination dates
specified in subsections (2)(b) and (7)(d) of this section, such
termination 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), (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.
Enrolled Senate Bill 963 (SB 963-B) Page 49
(5) The name of the property shall include the word '
condominium' or 'condominiums' or the words 'a condominium. '
(6) A condominium 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 statement of the total number of tracts of variable
property within the condominium, 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) - } { + (1)(i) + };
(C) A statement of the method of labeling each tract depicted
on the plat in accordance with ORS 100.115 { - (2)(i) - } { +
(1)(i) + }; 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, 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)(g), (i) and (j)
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. '
(j) A statement that if by the termination date all or a
portion of the withdrawable variable property has not been
withdrawn or reclassified, the withdrawable property shall
Enrolled Senate Bill 963 (SB 963-B) Page 50
automatically be withdrawn from the condominium as of the
termination date.
(k) A statement of the rights of the association under ORS
100.155 (2).
(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 the nonwithdrawable variable property:
(A) A statement that the plat shows the location and dimensions
of all nonwithdrawable property that is labeled ' NONWITHDRAWABLE
VARIABLE PROPERTY. '
(B) A description of all improvements that may be made and a
statement of the intended use of each improvement.
(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, the property shall
automatically be reclassified as of 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.
(D) A statement of the rights of the association under ORS
100.155 (3).
(m) A statement by the local governing body or appropriate
department thereof that the withdrawal of any variable property
designated as 'withdrawable variable property' in the declaration
in accordance with paragraph (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)(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)(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 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
Enrolled Senate Bill 963 (SB 963-B) Page 51
(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 37. 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 be governed
by this section and the applicable provisions of ORS 65.357,
65.361, 65.367, 65.369 and 65.377 whether or not the association
is incorporated under ORS chapter 65.
(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.
(6) The board of directors, in the name of the association,
shall maintain a current mailing address.
(7) The board of directors shall cause to be maintained and
kept current the information required to enable the association
to comply with ORS 100.480 { - (10) - } { + (11) + }.
(8) Unless otherwise provided in the declaration or bylaws:
(a) 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.
(b) Removal of a member of the board of directors is not
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 38. Section 24, chapter 803, Oregon Laws 2003, is
amended to read:
{ + Sec. 24. + } The requirements of ORS 94.670 { - (4) - }
{ + (5) + } first apply:
(1) Commencing with the fiscal year following the turnover
meeting required by ORS 94.616 for the association of a planned
community created under ORS 94.550 to 94.783 prior to January 1,
2004, if the turnover meeting has not yet occurred on January 1,
2004.
(2) Commencing with the fiscal year beginning in calendar year
2004 for the association of a planned community created under ORS
94.550 to 94.783 if the turnover meeting required by ORS 94.616
has occurred on or before January 1, 2004.
(3) Commencing with the fiscal year following the turnover
meeting required by ORS 94.616 for the association of a planned
community created under ORS 94.550 to 94.783 on or after January
1, 2004.
(4) Commencing with the fiscal year following the year in which
owners assume responsibility for administration of a planned
community described in ORS 94.572 if the owners have not assumed
Enrolled Senate Bill 963 (SB 963-B) Page 52
responsibility for administration of the planned community on
January 1, 2004.
(5) Commencing with the fiscal year beginning in calendar year
2004 for the association of a planned community described in ORS
94.572 if the owners have assumed responsibility for
administration of the planned community on or before January 1,
2004.
SECTION 39. Section 26, chapter 803, Oregon Laws 2003, is
amended to read:
{ + Sec. 26. + } The requirements of ORS 100.480
{ - (4) - } { + (5) + } first apply:
(1) Commencing with the fiscal year following the turnover
meeting for the association of unit owners of a condominium
created prior to January 1, 2004, if the turnover meeting has not
yet occurred on January 1, 2004.
(2) Commencing with the fiscal year beginning in calendar year
2004 for the association of unit owners of a condominium created
prior to January 1, 2004, if the turnover meeting has occurred on
or before January 1, 2004.
(3) Commencing with the fiscal year following the turnover
meeting for the association of unit owners of a condominium
created on or after January 1, 2004.
SECTION 40. ORS 100.110 is amended to read:
100.110. (1) { + (a) + } 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
{ + of the county in which the property is located + } and the
Real Estate Commissioner.
{ + (b) + } Before a declaration { + , + } { - or - }
supplemental declaration { + or, if required under subsection
(3) of this section, an amendment thereto + } may be recorded, it
must be approved by the tax collector of the county in which the
property is located.
{ + (c) + } A declaration { + , supplemental declaration + }
or amendment thereto may not be approved unless the requirements
of subsections (2) to { - (6) - } { + (7) + } 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 - }
{ + complies + } with the requirements of ORS 100.115 { + or
the plat amendment complies with section 43 of this 2009 Act + }.
(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 { + or creates an additional unit from common elements + }
for which a plat { + amendment + } is required under { - ORS
100.115 (9)(a) - } { + section 43 of this 2009 Act + }, 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
Enrolled Senate Bill 963 (SB 963-B) Page 53
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) - } { + (6) + } 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;
(c) The plat { - and floor plans comply - }
{ + complies + } with the requirements of ORS 100.115 { + or
the plat amendment complies with section 43 of this 2009 Act + };
(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 - } { + as provided in ORS 100.305
(6) or a signed statement that no tenants were entitled to notice
under ORS 100.305; 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 { + or plat amendment
prepared in conformance with section 43 of this 2009 Act + } 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) The commissioner shall approve a supplemental
declaration if:
(a) The supplemental declaration complies with the requirements
of ORS 100.120;
(b) The supplemental plat complies with the requirements of ORS
100.115;
(c) The supplemental declaration is for a conversion
condominium and the declarant has complied with the requirements
of subsection (4)(d) of this section; and
(d) A paper copy of the supplemental plat and a certification
of plat execution described in subsection (4)(e) of this section
have been submitted. + }
{ - (5) - } { + (6) + } Approval by the commissioner
{ - shall not be - } { + is not + } required for an amendment
to a declaration transferring the right of use of a limited
common element pursuant to ORS 100.515 (5).
{ - (6) - } { + (7) + } Before the commissioner approves
the declaration { + , supplemental declaration + } or amendment
thereto under this section:
Enrolled Senate Bill 963 (SB 963-B) Page 54
(a) The declarant { + or other person requesting approval + }
shall pay to the commissioner a fee determined by the
commissioner under ORS 100.670; and
(b) For an amendment { + or supplemental declaration + }, 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) - } { + (8) + } If the declaration { + ,
supplemental declaration + } or amendment thereto approved by the
commissioner under subsection (4) { + or (5) + } of this section
is not recorded in accordance with ORS 100.115 within { - two
years - } { + one year + } from the date of approval by the
commissioner, the approval { - shall - } automatically
{ - expire - } { + expires + } and the declaration { + ,
supplemental 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 - } { + expires + }.
SECTION 41. 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
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) - } { + (1) + } 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 suitable
drafting material having the characteristics of strength,
stability and transparency required by the county surveyor. The
plat or supplemental - } { + The plat or supplemental + } plat
{ - , - } { + shall be + } titled in accordance with
subsection { - (4) - } { + (3) + } of this section { - , - }
{ + and + } 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;
Enrolled Senate Bill 963 (SB 963-B) Page 55
(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 of all limited common elements described in the
declaration. The plat 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, show the
location and dimensions of all variable property identified in
the declaration and label 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 tract, each
tract shall be labeled in the same manner.
{ - (3) - } { + (2) + } 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 suitable drafting
material having the characteristics of strength, stability and
transparency required by the county surveyor. - } The
supplemental plat { - , - } { + shall be + } titled in
accordance with subsection { - (4) - } { + (3) + } of this
section { - , - } { + and + } shall:
Enrolled Senate Bill 963 (SB 963-B) Page 56
(a) Comply with ORS 92.050, 92.060 (1), (2) and (4), 92.080,
92.120 and { - subsections (4) and (5) - } { + subsection
(3) + } 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) - } { + (1)(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) - } { + (1)(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 - }
{ + certificate + } complying with ORS 92.070.
{ - (4) - } { + (3) + } 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 and the appropriate reference to the stage being
annexed or tract of variable property being reclassified. Each
supplemental plat for a condominium recorded on or after January
1, 2002, 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, Tract ___.
{ + (4) Upon request of the county surveyor or assessor, the
person offering a 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 suitable
drafting material having the characteristics of strength,
stability and transparency required by the county surveyor. + }
(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 take
measurements and make computations 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)(h);
(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).
Enrolled Senate Bill 963 (SB 963-B) Page 57
(6) The person offering the plat { + or supplemental 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 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.
{ - (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 subsection. - }
{ - (9) In addition to the provisions of subsection (12) of
this section, a plat, including any floor plans that are a part
of the plat, may be amended as follows: - }
{ - (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
acknowledgment of deeds. - }
{ - (C) The plat amendment shall be accompanied by an
amendment to the declaration authorizing such plat amendment. The
Enrolled Senate Bill 963 (SB 963-B) Page 58
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 100.135. - }
{ - (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. - }
Enrolled Senate Bill 963 (SB 963-B) Page 59
{ - (10) After recording of any declaration amendment or plat
amendment pursuant to subsection (9) of this section, 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. - }
{ - (11) For performing the services described in subsections
(9) and (10) of this section, 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. - }
{ - (12) 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 42. { + Section 43 of this 2009 Act is added to and
made a part of ORS chapter 100. + }
SECTION 43. { + (1) A plat, including any floor plans that are
a part of a plat, recorded before October 15, 1983, may be
amended as provided in this section.
(2)(a) Except as otherwise provided in ORS 100.600, the
following must be made by a plat entitled 'Plat Amendment':
(A) A change to the boundary of the property, a unit or a
limited common element;
(B) The creation of an additional unit from common elements; or
(C) A change to the configuration of other information required
to be graphically depicted on the plat.
(b) The plat amendment shall reference in the title of the
amendment the recording information of the original plat and any
previous plat amendments.
(3) The plat amendment shall comply with ORS 92.050, 92.060
(1), (2) and (4), 92.080 and 92.120 and shall include:
(a) A graphic depiction of the change;
(b) For a change to the boundary of the property, a surveyor's
certificate that complies with ORS 92.070;
(c) If the plat amendment is an amendment by correction under
section 43b of this 2009 Act, a statement that the plat amendment
is an amendment by correction under section 43b of this 2009 Act;
(d) A certification, including signature and official seal, of
a registered professional land surveyor that:
(A) The plat amendment accurately depicts the amendments to the
plat described in the declaration amendment recorded under
subsection (5) of this section; and
(B) Any construction that changes the boundaries of a unit or
limited common element or the construction of any additional unit
or limited common element has been completed; and
(e) A declaration by the chairperson and secretary on behalf of
the association of unit owners that the plat is being amended
pursuant to this section. If the amendment to the declaration
required under subsection (5) of this section is a correction
amendment under section 43a of this 2009 Act, the declaration
shall be by the declarant if the declarant adopts the correction
amendment under section 43a of this 2009 Act.
Enrolled Senate Bill 963 (SB 963-B) Page 60
(4) The declaration required under subsection (3)(e) of this
section shall be executed and acknowledged in the manner provided
for acknowledgment of deeds.
(5) The plat amendment shall be accompanied by an amendment to
the declaration authorizing the plat amendment. The declaration
amendment shall be executed, approved and recorded in accordance
with ORS 100.110 and 100.135 or section 43a of this 2009 Act, if
the declaration amendment is a correction amendment under section
43a of this 2009 Act.
(6) 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:
(a) Submit a copy of the proposed amendment to the declaration
required under subsections (3) to (5) of this section when the
plat amendment is submitted.
(b) Submit the original or a copy of the executed amendment to
the declaration approved by the Real Estate Commissioner if
required by law prior to approval of the plat amendment.
(c) Upon request of the county assessor or county surveyor,
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.
(7) 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
subsections (3) to (5) of this section. A declaration amendment
under this subsection shall include:
(a) References to recording index numbers and date of recording
of the declaration or plat and any applicable supplemental
declarations, amendments, supplemental plats or plat amendments.
(b) A description of the change to the plat.
(c) A statement that the amendment was approved in accordance
with the declaration and ORS 100.135.
(8) The declaration amendment described in subsection (7) of
this section shall be executed, approved and recorded in
accordance with ORS 100.110 and 100.135.
(9) Before the declaration amendment described in subsection
(7) of this section may be recorded, it must be approved by the
city or county surveyor as provided in ORS 92.100. The surveyor
shall approve the declaration amendment if it complies with
subsection (7) of this section. Such approval shall be evidenced
by execution of the amendment or by written approval attached
thereto.
(10) Floor plans of a condominium for which a plat was not
required at the time of creation may be amended by amendment of
the declaration. An amendment under this subsection shall
include:
(a) References to recording index numbers and date of recording
of the declaration and any applicable supplemental declarations
or amendments.
(b) A description of the change to the floor plans.
(c) 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
Enrolled Senate Bill 963 (SB 963-B) Page 61
accurately depicts the boundaries of the unit or common element
as it currently exists.
(11) The declaration amendment described in subsection (10) of
this section 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.
(12) After recording of any declaration amendment or plat
amendment pursuant to this section, 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.
(13) For performing the services described in subsections (6),
(9) and (12) of this section, 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. + }
SECTION 43a. { + (1) As used in this section and section 43b
of this 2009 Act, 'document' means the declaration, supplemental
declaration or bylaws of a condominium.
(2) Notwithstanding a provision in a document or this chapter,
a document or an amendment to a document may be corrected by a
correction amendment under this section to:
(a) Correct the omission of an exhibit to a document.
(b) Correct a mathematical mistake, including, but not limited
to:
(A) The calculation of the stated interest of affected units in
the common elements;
(B) The area in square feet of a unit specified in the
declaration or supplement declaration; and
(C) Liability of a unit for common expenses or right to common
profits.
(c) Correct an inconsistency within a document or between or
among the documents or a plat, supplemental plat or plat
amendment.
(d) Correct an ambiguity, inconsistency or error with respect
to an objectively verifiable fact.
(e) Authorize a plat amendment by correction under section 43b
of this 2009 Act or an affidavit of correction under section 43b
of this 2009 Act.
(f) Correct a provision that was inconsistent with this chapter
at the time the document was recorded.
(g) Correct the omission of a provision required under this
chapter.
(3) A correction amendment adopted under subsection (4) of this
section shall include:
(a) The words 'Correction Amendment' in or after the title;
(b) A reference to the recording index numbers and date of
recording of the declaration, bylaws, plat, the document being
corrected and any other applicable supplemental declarations,
supplemental plats or amendments to the documents;
(c) A statement of the purpose of the correction; and
(d) A reference to this section.
Enrolled Senate Bill 963 (SB 963-B) Page 62
(4) The board of directors may adopt a correction amendment
under this section after giving notice as provided in subsection
(8) of this section. No action by the unit owners is required.
(5) The declarant of the condominium may unilaterally adopt a
correction amendment under this section to:
(a) A document or an amendment to a document, before the
conveyance of the first unit in the condominium.
(b) A supplemental declaration or an amendment to the
supplemental declaration, before conveyance of the first unit
created by the supplemental declaration.
(6) A correction amendment under this section is not effective
unless:
(a) The amendment is approved by the Real Estate Commissioner
under ORS 100.110 and, to the extent required, ORS 100.410, the
county assessor in accordance with ORS 100.110 and, if required,
the county tax collector;
(b) The amendment is certified by the chairperson and secretary
of the association of unit owners as being adopted in accordance
with subsection (4) of this section or is certified by the
declarant under subsection (5) of this section and acknowledged
in the manner provided for acknowledgement of deeds; and
(c) Is recorded.
(7) A correction amendment that corrects the boundary of a
unit, common element, variable property or other property
interest constitutes a conveyance to the extent necessary to
effectuate the correction.
(8)(a) Except for a correction amendment adopted by a declarant
under subsection (5) of this section, the notice of any meeting
of the board of directors at which the board intends to consider
adoption of a correction amendment under this section must:
(A) State that the board intends to consider the adoption of a
correction amendment.
(B) Specify the document to be corrected.
(C) Include a description of the nature of the correction.
(b) At least three days before the meeting of the board of
directors, a notice of the meeting must be given to all owners in
the manner described in ORS 100.420 (3).
(9) The owner of a unit materially affected by the correction
must be given notice of the meeting of the board of directors
under subsection (8) of this section in the manner required under
ORS 100.407 (4).
(10) The board of directors shall provide a copy of the
recorded correction amendment and any plat amendment by
correction or by affidavit of correction under section 43b of
this 2009 Act recorded concurrently with the correction amendment
to any owner described under subsection (9) of this section and
to any owner if the correction changes that owner's:
(a) Allocation of voting rights;
(b) Liability for common expenses that changes the amount of
any assessment; or
(c) Allocation of interest in the common elements. + }
SECTION 43b. { + (1) Unless the context requires otherwise, as
used in this section 'plat' means:
(a) A plat recorded under ORS 100.115.
(b) Floor plans made part of a plat that was recorded before
October 15, 1983.
(c) A supplemental plat recorded under ORS 100.115.
(d) A plat amendment recorded under section 43 of this 2009
Act.
Enrolled Senate Bill 963 (SB 963-B) Page 63
(2) Notwithstanding a provision in a document of a condominium
or this chapter, a plat may be corrected by a plat amendment
under section 43 of this 2009 Act as provided in subsection (3)
of this section or by an affidavit of correction as provided in
subsection (4) of this subsection.
(3) Except as provided in subsection (4) of this section, a
correction to a plat must be made by a plat amendment in
accordance with section 43 of this 2009 Act. The plat amendment
by correction may:
(a) Conform the designation, depiction or boundaries of a unit,
common elements or variable property on the plat to the physical
location or actual dimensions of the unit, common elements or
variable property.
(b) Correct a mathematical mistake.
(c) Correct the designation of a unit or limited common
element.
(d) Make any other correction permitted under section 43a of
this 2009 Act.
(4) An affidavit of correction may correct a plat to:
(a) Show any courses or distances omitted from the plat.
(b) Correct an error in any courses or distances shown on the
plat.
(c) Correct an error in the description of the real property
shown on the plat.
(d) Correct any other errors or omissions when the error or
omission is ascertainable from the data shown on the plat.
(e) Correct any other errors or omissions on the plat
determined by the county surveyor.
(5) Nothing in subsection (4) of this section may be construed
to permit changes in courses or distances for the purpose of
redesigning unit, common element or variable property
configurations by affidavit of correction under this section.
(6) The affidavit of correction shall be prepared by the
registered professional land surveyor whose signature and seal
are on the plat. In the event of the death, disability or
retirement from practice of the surveyor, the county surveyor may
prepare and record the affidavit of correction.
(7) The affidavit of correction prepared under subsection (6)
of this section shall:
(a) Set forth in detail the corrections made; and
(b) Contain the seal and signature of the registered
professional land surveyor making the correction which shall be
affixed to the affidavit of correction.
(8) The affidavit of correction shall be submitted to the
county surveyor for examination and a determination that:
(a) The changes shown on the affidavit of correction are
permitted under subsection (4) of this section; and
(b) The affidavit of correction complies with subsection (7) of
this section.
(9) If the county surveyor determines that the affidavit of
correction complies with subsection (7) of this section, the
county surveyor shall sign a certification that the affidavit of
correction has been examined and complies with this section. The
certification shall be a part of or an attachment to the
affidavit of correction.
(10)(a) Before an affidavit of correction is recorded, it must
be approved by the Real Estate Commissioner. The affidavit of
correction shall be filed with the commissioner under ORS
100.670.
Enrolled Senate Bill 963 (SB 963-B) Page 64
(b) The commissioner shall approve the affidavit of correction
if it complies with this section. The approval shall be evidenced
by execution of the affidavit of correction.
(11)(a) The surveyor who prepared the affidavit of correction
shall cause the affidavit of correction to be recorded by the
recording officer of the county where the plat or supplemental
plat is recorded.
(b) If a correction by an affidavit of correction requires a
correction amendment to a document under section 43a of this 2009
Act, the affidavit of correction must be recorded concurrently
with the correction amendment.
(12) The surveyor who prepared the affidavit of correction
shall cause a copy of the recorded affidavit of correction to be
provided to:
(a) The association of unit owners of the condominium, at the
address shown in the Condominium Information Report filed in
accordance with ORS 100.250 or such other address of which the
surveyor has knowledge.
(b) The county surveyor, unless otherwise directed by the
county surveyor.
(c) The commissioner.
(13)(a) Unless otherwise specified in the affidavit of
correction, after recording the affidavit of correction, the
county clerk shall return the affidavit of correction to the
county surveyor.
(b) Upon receipt of the original recorded affidavit of
correction or a copy, the county surveyor shall note the
correction and the recorder's filing information, with permanent
ink, upon any true and exact copies filed in accordance with ORS
92.120 (3). The corrections and filing information shall be
marked in such a manner so as not to obliterate any portion of
the plat.
(14) For recording the affidavit of correction under subsection
(11) of this section, the county clerk shall collect a fee as
provided in ORS 205.320. Corrections or changes are not allowed
on the original plat once it is recorded.
(15) For performing the services described in this section, the
county surveyor shall collect from the person submitting the
affidavit of correction a fee established by the county governing
body. + }
SECTION 44. 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 the supplemental declarations shall:
(a) Include a reference to recording index numbers and date of
recording of the initial declaration and bylaws.
(b) Be consistent with the provisions of the original
declaration prepared pursuant to ORS 100.105 and any prior
recorded supplemental declarations.
(c) Contain the information required by ORS 100.105 (1) insofar
as that information relates to the property being annexed or
reclassified.
(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.
Enrolled Senate Bill 963 (SB 963-B) Page 65
(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 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) - } { + (2) + } 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)(m).
(e) If any variable property is being redesignated as '
nonwithdrawable variable property,' include the information
required under ORS 100.105 (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 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 - } { + section 43 of this 2009
Act + } 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 45. 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 + } { - 100.115 and
100.120 - } .
Enrolled Senate Bill 963 (SB 963-B) Page 66
SECTION 46. ORS 100.130 is amended to read:
100.130. (1) Subject to any limitations contained in the
declaration, the boundaries between adjoining units, including
any intervening common elements, may be relocated or eliminated
by an amendment to the declaration. The owners of the affected
units shall submit to the board of directors of the association a
proposed amendment which shall identify the units involved, state
any reallocations of common element interest, voting rights,
common expense liability and right to common profits and contain
words of conveyance. The board of directors shall approve the
amendment unless it determines within 45 days that the
reallocations are unreasonable or the relocation or elimination
will impair the structural integrity or mechanical systems of the
condominium or lessen the support of any portion of the
condominium.
(2) The board of directors of the association of unit owners
may require the owners of the affected units to submit an opinion
of a registered architect or registered professional engineer
that the proposed relocation or elimination will not impair the
structural integrity or mechanical systems of the condominium or
lessen the support of any portion of the condominium.
(3) The board of directors of the association or any agent
appointed by the board of directors may supervise the work
necessary to effect the boundary relocation or elimination.
(4) Any expenses incurred under subsections (2) and (3) of this
section shall be charged to the owners of the units requesting
the boundary relocation or elimination.
(5) The amendment shall be executed by the owners and
mortgagees or trust deed beneficiaries of the affected units,
certified by the chairperson and secretary of the association and
approved and recorded in accordance with ORS 100.135 (2)(b).
(6) An amendment to the plat and any floor plans necessary to
show the altered boundaries between the adjoining units shall be
recorded in accordance with { - ORS 100.115 - } { + section
43 of this 2009 Act + }.
SECTION 47. ORS 100.515 is amended to read:
100.515. (1) Each unit shall be entitled to an undivided
interest in the common elements in the allocation expressed in
the declaration. Such allocation shall be expressed as a fraction
or percentage of undivided interest in the common elements.
Except as otherwise provided in this chapter, the allocation of
undivided interest of each unit in the common elements as
expressed in a declaration shall not be altered unless all unit
owners having an interest in the particular common element agree
thereto and record an amendment to the declaration setting forth
the altered allocation of each unit having an interest.
(2) The sums of the undivided interest in the common elements
shall equal one if stated as fractions or 100 percent if stated
as percentages.
(3) The undivided interest in the common elements shall not be
separated from the unit to which it appertains and shall be
conveyed or encumbered with the unit even though such interest is
not expressly mentioned or described in the conveyance or other
instrument.
(4) The common elements shall remain undivided and no unit
owner shall bring any action for partition or division of any
part thereof, except as provided in this chapter. Any covenant to
the contrary is void.
(5) Notwithstanding subsections (1) and (3) of this section,
except where expressly prohibited by the declaration or bylaws,
Enrolled Senate Bill 963 (SB 963-B) Page 67
the right of use of any unit in a limited common element may be
transferred to any other unit. Such transfer shall occur only if
the existing unit owner and all mortgagees of the unit for which
the right of use of the limited common element is presently
reserved and the unit owner to whom the right of use is being
transferred agree to and record an amendment to the declaration
setting forth the transfer.
(6) Notwithstanding subsections (1) and (3) of this section, in
the case where a single unit is originally designed and
constructed to be two or more separate hotel, motel or other
similar living accommodations with separate bathrooms and
separate entrances from a hallway, balcony, staircase or other
common element, the owner, or owners, with the consent of the
holder, or holders, of any recorded mortgage or lien on the unit,
may separate such unit into two or more units each having such
separate bathrooms and entrances from such common elements. Such
persons may divide between such separate units the allocation of
the common elements assigned to the original unit on
substantially the basis that the square footage of such separated
units bears to the total square footage of the original unit by
recording an amendment to the declaration signed by such owner,
or owners, of original unit together with an amendment to any
plat and floor plan of such original unit recorded pursuant to
{ - ORS 100.115 - } { + section 43 of this 2009 Act + } showing
the division thereof into such two or more units. The amendment
shall comply with { - ORS 100.115 - } { + section 43 of this
2009 Act + }. Such separated parts of the original unit shall not
be used for any purpose other than the purpose for which such
separable parts were originally designed and constructed and
thereafter have generally been used.
SECTION 48. 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) - } { + (1) + } 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
Enrolled Senate Bill 963 (SB 963-B) Page 68
calculating reserves in accordance with ORS 100.175, unless the
information is contained in the disclosure statement;
(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 (2) and any warranty
required under ORS 100.185; and
(b) A receipt for documents required under ORS 100.725;
(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;
(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;
(11) Any other documents by which the purchasers will be bound;
(12) Any report or disclosure statement issued for the
condominium, by the federal government and any other state; and
(13) A statement of any additional facts or information which
the developer desires to submit to the commissioner.
----------
Passed by Senate May 7, 2009
Repassed by Senate June 17, 2009
...........................................................
Secretary of Senate
...........................................................
President of Senate
Passed by House June 10, 2009
...........................................................
Speaker of House
Enrolled Senate Bill 963 (SB 963-B) Page 69
Received by Governor:
......M.,............., 2009
Approved:
......M.,............., 2009
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2009
...........................................................
Secretary of State
Enrolled Senate Bill 963 (SB 963-B) Page 70