Chapter 94 — Real
Property Development
2011 EDITION
REAL PROPERTY DEVELOPMENT
PROPERTY RIGHTS AND TRANSACTIONS
DEVELOPMENT AGREEMENTS
94.504 Development
agreements; contents; duration; effect on affordable housing covenants
94.508 Approval
by governing body; findings; adoption
94.513 Procedures
on consideration and approval
94.518 Application
of local government law and policies to agreement
94.522 Amendment
or cancellation of agreement; enforceability
94.528 Recording
TRANSFERABLE DEVELOPMENT CREDITS
94.531 Severable
development interest in real property; transferable development credit
94.534 Policy
on transferable development credit systems
94.536 Definitions
for ORS 94.536 and 94.538
94.538 Transferable
development credit systems
PLANNED COMMUNITIES
(General Provisions)
94.550 Definitions
for ORS 94.550 to 94.783
94.560 Legislative
findings
(Creation of Planned Community)
94.565 Planned
community to be created under ORS 94.550 to 94.783; exception; conveyance of
lot or unit prohibited until declaration recorded
94.570 Applicability
of ORS 94.550 to 94.783
94.572 Applicability
of certain provisions of ORS 94.550 to 94.783 to Class I or Class II planned
communities
94.575 Applicability
of subdivision law
94.580 Declaration;
recordation; contents
94.585 Authority
to amend declaration and initial bylaws to comply with federal or state laws
94.590 Amendment
of declaration by owners
94.595 Reserve
account for maintaining, repairing and replacing common property; reserve
study; maintenance plan
(Declarant
Control; Turnover of Administrative Control)
94.600 Declarant control of association
94.604 Transitional
advisory committee
94.609 Notice
of meeting to turn over administrative responsibility
94.616 Turnover
meeting; transfer of administration; receivership
94.621 Rights
of declarant following turnover meeting
94.622 Obligations
and liabilities arising from transfer of special declarant
rights
94.623 Acquisition
of special declarant rights by successor declarant; exceptions
(Homeowners Association; Management of
Planned Community)
94.625 Formation
of homeowners association; adoption of initial bylaws; amendment of bylaws
94.626 Corporate
dissolution of association
94.630 Powers
of association
94.635 Association
bylaws
94.639 Criteria
for board of directors membership
94.640 Association
board of directors; powers and duties; removal of director; meetings; executive
sessions
94.641 Assent
of director to board action
94.642 Receivership
for failure of homeowners association to fill vacancies on board of directors
94.645 Adoption
of annual budget
94.647 Use
of written ballot for approving or rejecting matters subject to meeting of
association members; procedures; exceptions
94.650 Meetings
of lot owners; notice
94.652 Electronic
notice to owner or director
94.655 Quorum
for association meetings
94.657 Rules
of order
94.658 Voting
or granting consent
94.660 Method
of voting or consenting
94.661 Electronic
ballot
94.662 Notice
to lot owners of intent of association to commence judicial or administrative
proceeding; contents of notice; right of lot owner to opt out
94.665 Authority
of association to sell, transfer, convey or encumber common property
94.667 Recording
association information with county clerk
94.670 Association
duty to keep documents and records; deposit of assessments; payment of
association expenses; review of financial statement by certified public
accountant; examination of records by owner
94.673 When
compliance with specified provisions of ORS 94.640 and 94.670 required
94.675 Insurance
for common property
94.676 Insurance
deductible for certain planned communities
94.677 Election
to have ORS 94.645, 94.655 and 94.675 apply
94.680 Blanket
all-risk insurance
94.685 Specification
of insurance for individual lots
94.690 Terms
of insurance under ORS 94.680
94.695 Authority
to delegate association powers to master association
94.700 Duration
and termination of initial management agreements and service and employment
contracts; exceptions
(Assessments and Liens Against Lots;
Easements)
94.704 Assessment
and payment of common expenses
94.709 Liens
against lots; priority; duration; record notice of claim of unpaid assessment;
foreclosure procedure
94.712 Lot
owner personally liable for assessment; joint liability of grantor and grantee
following conveyance; limitation
94.716 Lien
against two or more lots; release
94.719 Lien
foreclosure; other legal action by declarant,
association or owner; attorney fees
94.723 Common
expenses; liability of first mortgagee
94.728 Taxation
of lots and common property
94.733 Easements
held by owner of lot and by declarant; homeowners
association access to lots
(Miscellaneous)
94.760 Promotional
material showing possible improvements
94.764 Changes
or actions that require approval or consent of mortgagee
94.770 Application
of rule against perpetuities; conflict between declaration and bylaws; effect
on title of declaration’s noncompliance with Oregon Planned Community Act;
conflict between Oregon Planned Community Act and ORS chapter 65
94.775 Judicial
partition prohibited
94.777 Compliance
with bylaws and other restrictions required; effect of noncompliance
94.780 Remedies
94.783 When
certain administrative provisions apply
94.785 Short
title
TIMESHARE ESTATES
(General Provisions)
94.803 Definitions
for ORS 94.803 and 94.807 to 94.945
94.806 Legislative
finding
94.807 Application
94.808 Managing
entity as taxpayer
94.809 Valuation
of timeshare property; exclusions from value
94.811 When
owners of planned community, condominium or subdivision may prohibit timeshare
plan
(Creation of Timeshare Estates)
94.813 Character
of timeshare estates
94.816 Partition
prohibited; exception
94.818 Recording
of timeshare instrument; payments required
94.821 Content
of timeshare instrument
94.823 Notice
of intent to sell timeshares; form and content; rules
94.826 Information
on exchange program; content; rules
94.828 Public
report on plan
94.829 Sale
not allowed before issuance of public report; distribution and uses of report
94.831 Filing
fees; inspection advance payment; disposition of moneys
94.833 Sale
of timeshare plan located out-of-state
(Purchaser’s Rights)
94.836 Cancellation
of purchase within five days
94.839 Notice
of cancellation right
94.841 Waiver
of rights void
94.843 Limits
on developer right to transfer
(Association of Owners; Management)
94.846 Designation
of managing entity; duties and powers of entity
94.848 How
managing entity of developer terminated
94.853 Payment
of common expenses
94.856 Assessment
of common expenses as lien; recording; foreclosure; fees; remedies; exception
94.858 Owners’
association; powers and duties
94.863 Developer’s
duty to managing entity
94.867 Judicial
declaration of failure in management
94.869 Insurance
coverage
(Escrow)
94.871 When
purchase money agreement prohibited; escrow requirements
94.873 Escrow
account; closing; release
94.876 Requirements
for closing escrow
94.878 Duties
of escrow agent
94.881 Who
may serve as escrow agent
(Lien Payment)
94.885 Rights
of lienholder
94.890 Lien
payment trust; payments; delinquencies
94.895 Trust
irrevocable without alternative arrangement
94.900 Alternative
to lien payment trust
94.905 Surety
bond
(Enforcement)
94.915 Inspection
of records; rules; uniform standards
94.920 Consent
to service by out-of-state developer
94.925 Civil
penalty
94.930 Commissioner
order; injunctive relief
(Prohibited Practices)
94.940 False
practices prohibited
94.945 Advertising
regulation
MEMBERSHIP CAMPGROUNDS
94.953 Definitions
for ORS 94.953 to 94.989
94.956 Registration
required to sell membership camping contract
94.959 Application
for registration
94.962 Exemptions
from registration
94.965 Effective
date of registration
94.968 Denial,
suspension and revocation of registration; other sanctions
94.971 Fee
for registration or amendment of an offer or sale of membership camping
contract
94.974 Written
disclosures required; procedures; inspection of records
94.975 False
practices prohibited
94.976 Advertising
regulation
94.977 Registration
as salesperson or broker
94.980 Application
for registration; fee
94.983 Cancellation
of contract by purchaser; notice of right to cancel
94.986 Requirements
for sale of membership camping contract; nondisturbance
agreements
94.987 Judicial
declaration of failure in management
94.989 Interpretation
of membership camping contracts; application of Unlawful Trade Practices Act
94.004
[Formerly 91.500; 1983 c.530 §48; 1987 c.459 §1; 1989 c.595 §1;
renumbered 100.005 in 1989]
94.005
[Repealed by 1971 c.478 §1]
94.010
[Repealed by 1971 c.478 §1]
94.011
[Formerly 91.503; renumbered 100.010 in 1989]
94.013 [1987 c.459 §6; 1989 c.595 §2;
renumbered 100.020 in 1989]
94.015
[Repealed by 1971 c.478 §1]
94.016 [1987 c.459 §39; renumbered 100.025 in 1989]
94.017
[Formerly 91.504; 1987 c.459 §37; 1989 c.595 §3; renumbered 100.185 in 1989]
94.020
[Repealed by 1971 c.478 §1]
94.021 [1987 c.459 §3; 1989 c.595 §4;
renumbered 100.150 in 1989]
94.022 [1987 c.459 §4; 1989 c.595 §5;
renumbered 100.155 in 1989]
94.023
[Formerly 91.506; 1987 c.459 §7; 1989 c.595 §6; renumbered 100.100 in 1989]
94.025
[Repealed by 1971 c.478 §1]
94.029
[Formerly 91.509; 1983 c.530 §49; 1983 c.615 §1; 1987 c.459 §8; 1989 c.595 §7; renumbered 100.105 in 1989]
94.030
[Repealed by 1971 c.478 §1]
94.035
[Repealed by 1971 c.478 §1]
94.036
[Formerly 91.512; 1983 c.615 §2; 1983 c.740 §7a; 1987 c.459 §9; renumbered 100.110 in 1989]
94.040
[Repealed by 1971 c.478 §1]
94.042 [Formerly
91.515; 1983 c.309 §8; 1985 c.582
§2; 1987 c.459 §10; 1989 c.595
§8; renumbered 100.115 in 1989]
94.045
[Repealed by 1971 c.478 §1]
94.047
[Formerly 91.518; 1983 c.309 §8a;
1987 c.459 §11; 1989 c.595 §9;
renumbered 100.120 in 1989]
94.048 [1987 c.459 §3a; renumbered 100.125 in
1989]
94.050
[Repealed by 1971 c.478 §1]
94.053
[Formerly 91.519; 1983 c.309 §8b;
renumbered 100.130 in 1989]
94.055
[Repealed by 1971 c.478 §1]
94.059
[Formerly 91.521; 1983 c.615 §3; 1987 c.459 §12; renumbered 100.135 in 1989]
94.060
[Repealed by 1971 c.478 §1]
94.065
[Repealed by 1971 c.478 §1]
94.066 [1981 c.647 §30; renumbered 100.170 in 1989]
94.070
[Repealed by 1971 c.478 §1]
94.072 [1981 c.647 §33; renumbered 100.175 in 1989]
94.075
[Repealed by 1971 c.478 §1]
94.078 [1981 c.647 §25; 1983 c.206 §1; 1983 c.530 §50; 1987 c.459 §13; 1989 c.595 §10; renumbered 100.200 in 1989]
94.080
[Repealed by 1971 c.478 §1]
94.084 [1981 c.647 §26; 1987 c.459 §14;
renumbered 100.205 in 1989]
94.085 [Repealed
by 1971 c.478 §1]
94.090
[Repealed by 1971 c.478 §1]
94.091 [1981 c.647 §27; 1983 c.206 §2; 1987 c.459 §15; renumbered 100.210 in 1989]
94.095
[Repealed by 1971 c.478 §1]
94.097 [1981 c.647 §29; 1989 c.595 §11;
renumbered 100.220 in 1989]
94.100
[Repealed by 1971 c.478 §1]
94.103 [1981 c.647 §28; 1989 c.595 §12;
renumbered 100.225 in 1989]
94.105
[Repealed by 1971 c.478 §1]
94.109
[Formerly 91.523; renumbered 100.300 in 1989]
94.110
[Repealed by 1971 c.478 §1]
94.115
[Repealed by 1971 c.478 §1]
94.116
[Formerly 91.524; renumbered 100.305 in 1989]
94.120
[Repealed by 1971 c.478 §1]
94.122
[Formerly 91.526; 1989 c.595 §13; renumbered 100.310
in 1989]
94.125
[Repealed by 1971 c.478 §1]
94.128 [1981 c.886 §5; 1989 c.595 §14; renumbered
100.315 in 1989]
94.130
[Repealed by 1971 c.478 §1]
94.134 [1981 c.886 §6; 1989 c.595 §15;
renumbered 100.320 in 1989]
94.135
[Repealed by 1971 c.478 §1]
94.140
[Repealed by 1971 c.478 §1]
94.145
[Repealed by 1971 c.478 §1]
94.146 [Formerly
91.527; 1989 c.595 §16; renumbered 100.405 in 1989]
94.150
[Repealed by 1971 c.478 §1]
94.152
[Formerly 91.531; 1983 c.615 §4; 1987 c.459 §16; 1989 c.595 §48;
renumbered 100.410 in 1989]
94.155
[Repealed by 1971 c.478 §1]
94.158
[Formerly 91.533; 1987 c.459 §17; 1989 c.595 §17; renumbered 100.415 in 1989]
94.160
[Repealed by 1971 c.478 §1]
94.164
[Formerly 91.534; renumbered 100.420 in 1989]
94.165
[Repealed by 1971 c.478 §1]
94.170
[Repealed by 1971 c.478 §1]
94.171
[Formerly 91.536; 1987 c.459 §18; renumbered 100.430
in 1989]
94.175
[Repealed by 1971 c.478 §1]
94.177 [1981 c.647 §32; renumbered 100.435 in 1989]
94.180
[Repealed by 1971 c.478 §1]
94.185
[Formerly 91.539; 1989 c.595 §18; renumbered 100.440
in 1989]
94.190 [Formerly
91.542; renumbered 100.445 in 1989]
94.195
[Formerly 91.546; 1983 c.530 §51; 1989 c.595 §19; renumbered 100.450 in 1989]
94.202
[Formerly 91.548; 1989 c.595 §20; renumbered 100.460
in 1989]
94.205
[Repealed by 1971 c.478 §1]
94.208
[Formerly 91.551; 1989 c.595 §21; renumbered 100.475
in 1989]
94.210
[Repealed by 1971 c.478 §1]
94.214
[Formerly 91.554; renumbered 100.480 in 1989]
94.215
[Repealed by 1971 c.478 §1]
94.220
[Repealed by 1971 c.478 §1]
94.221
[Formerly 91.557; renumbered 100.485 in 1989]
94.225
[Repealed by 1971 c.478 §1]
94.230
[Repealed by 1971 c.478 §1]
94.231
[Formerly 91.561; renumbered 100.505 in 1989]
94.235
[Repealed by 1971 c.478 §1]
94.237
[Formerly 91.562; renumbered 100.510 in 1989]
94.240
[Repealed by 1971 c.478 §1]
94.243
[Formerly 91.563; 1983 c.309 §8c;
1983 c.615 §5; renumbered 100.515 in 1989]
94.245
[Repealed by 1971 c.478 §1]
94.250 [1981 c.647 §31; 1983 c.309 §8d; renumbered 100.520 in 1989]
94.255
[Formerly 91.564; renumbered 100.525 in 1989]
94.260
[Formerly 91.566; 1987 c.459 §19; 1989 c.595 §22; renumbered 100.530 in 1989]
94.265
[Formerly 91.569; renumbered 100.535 in 1989]
94.270
[Formerly 91.572; renumbered 100.540 in 1989]
94.275
[Formerly 91.576; renumbered 100.545 in 1989]
94.280
[Formerly 91.578; 1983 c.615 §6; 1989 c.595 §23; renumbered 100.550 in 1989]
94.285
[Formerly 91.581; renumbered 100.555 in 1989]
94.295
[Formerly 91.584; 1989 c.595 §24; renumbered 100.600
in 1989]
94.300
[Formerly 91.587; 1989 c.595 §25; renumbered 100.605
in 1989]
94.305
[Repealed by 1971 c.478 §1]
94.306
[Formerly 91.591; 1989 c.595 §26; renumbered 100.610
in 1989]
94.310
[Repealed by 1971 c.478 §1]
94.312
[Formerly 91.593; 1989 c.595 §27; renumbered 100.615
in 1989]
94.315
[Repealed by 1971 c.478 §1]
94.318
[Formerly 91.596; 1989 c.595 §28; renumbered 100.620
in 1989]
94.320
[Repealed by 1971 c.478 §1]
94.322 [1983 c.615 §8; renumbered 100.625 in 1989]
94.324
[Formerly 91.599; 1985 c.760 §1; repealed by 1987 c.459 §41]
94.325
[Repealed by 1971 c.478 §1]
94.330
[Amended by 1969 c.591 §278; repealed by 1971 c.478 §1]
94.331
[Formerly 91.602; 1987 c.459 §20; 1989 c.595 §29; renumbered 100.635 in 1989]
94.333 [1987 c.459 §22; renumbered 100.015 in 1989]
94.335
[Repealed by 1971 c.478 §1]
94.336
[Formerly 91.606; repealed by 1987 c.459 §41]
94.340
[Repealed by 1971 c.478 §1]
94.342
[Formerly 91.608; 1987 c.459 §29; renumbered 100.645
in 1989]
94.345
[Repealed by 1971 c.478 §1]
94.348
[Formerly 91.611; 1987 c.459 §30; renumbered 100.650
in 1989]
94.350
[Repealed by 1971 c.478 §1]
94.351 [1987 c.459 §24; 1989 c.595 §30;
renumbered 100.655 in 1989]
94.353 [1987 c.459 §25; renumbered 100.640 in 1989]
94.354 [1987 c.459 §23; renumbered 100.670 in 1989]
94.355
[Repealed by 1971 c.478 §1]
94.356 [1987 c.459 §26; renumbered 100.660 in 1989]
94.357 [1987 c.459 §27; renumbered 100.675 in 1989]
94.358 [1987 c.459 §28; renumbered 100.680 in 1989]
94.359
[Formerly 91.614; 1987 c.459 §31; renumbered 100.700
in 1989]
94.360
[Repealed by 1971 c.478 §1]
94.365
[Repealed by 1971 c.478 §1]
94.366
[Formerly 91.617; repealed by 1987 c.459 §41]
94.370
[Repealed by 1971 c.478 §1]
94.372
[Formerly 91.621; repealed by 1987 c.459 §41]
94.375
[Repealed by 1971 c.478 §1]
94.378
[Formerly 91.623; repealed by 1987 c.459 §41]
94.380
[Repealed by 1971 c.478 §1]
94.384
[Formerly 91.626; 1987 c.459 §32; 1989 c.171 §12; 1989 c.595 §31;
renumbered 100.705 in 1989]
94.385
[Repealed by 1971 c.478 §1]
94.390
[Repealed by 1971 c.478 §1]
94.391
[Formerly 91.629; 1987 c.459 §35; renumbered 100.710
in 1989]
94.395
[Repealed by 1971 c.478 §1]
94.400
[Formerly 91.631; renumbered 100.720 in 1989]
94.405
[Repealed by 1971 c.478 §1]
94.406
[Formerly 91.634; renumbered 100.725 in 1989]
94.410
[Repealed by 1971 c.478 §1]
94.412
[Formerly 91.637; 1989 c.595 §47; renumbered 100.730
in 1989]
94.415
[Repealed by 1971 c.478 §1]
94.418 [1981 c.647 §24; renumbered 100.735 in 1989]
94.420
[Repealed by 1971 c.478 §1]
94.424
[Formerly 91.641; 1989 c.595 §32; renumbered 100.740
in 1989]
94.425
[Repealed by 1971 c.478 §1]
94.430
[Repealed by 1971 c.478 §1]
94.431
[Formerly 91.646; 1987 c.459 §36; renumbered 100.745
in 1989]
94.435
[Repealed by 1971 c.478 §1]
94.437
[Formerly 91.649; renumbered 100.750 in 1989]
94.440
[Repealed by 1971 c.478 §1]
94.445
[Repealed by 1971 c.478 §1]
94.448
[Formerly 91.652; renumbered 100.770 in 1989]
94.454
[Formerly 91.656; renumbered 100.775 in 1989]
94.460
[Formerly 91.658; renumbered 100.780 in 1989]
94.465
[Formerly 91.661; 1989 c.595 §33; renumbered 100.785
in 1989]
94.470
[Formerly 91.664; 1983 c.696 §7b;
1989 c.706 §7; renumbered 100.900 in 1989]
94.475
[Formerly 91.667; renumbered 100.905 in 1989]
94.480
[Formerly 91.671; renumbered 100.910 in 1989]
DEVELOPMENT AGREEMENTS
94.504 Development agreements; contents;
duration; effect on affordable housing covenants.
(1) A city or county may enter into a development agreement as provided in ORS
94.504 to 94.528 with any person having a legal or equitable interest in real
property for the development of that property.
(2)
A development agreement shall specify:
(a)
The duration of the agreement;
(b)
The permitted uses of the property;
(c)
The density or intensity of use;
(d)
The maximum height and size of proposed structures;
(e)
Provisions for reservation or dedication of land for public purposes;
(f)
A schedule of fees and charges;
(g)
A schedule and procedure for compliance review;
(h)
Responsibility for providing infrastructure and services;
(i) The effect on the agreement when changes in regional
policy or federal or state law or rules render compliance with the agreement
impossible, unlawful or inconsistent with such laws, rules or policy;
(j)
Remedies available to the parties upon a breach of the agreement;
(k)
The extent to which the agreement is assignable; and
(L)
The effect on the applicability or implementation of the agreement when a city
annexes all or part of the property subject to a development agreement.
(3)
A development agreement shall set forth all future discretionary approvals
required for the development specified in the agreement and shall specify the
conditions, terms, restrictions and requirements for those discretionary
approvals.
(4)
A development agreement shall also provide that construction shall be commenced
within a specified period of time and that the entire project or any phase of
the project be completed by a specified time.
(5)
A development agreement shall contain a provision that makes all city or county
obligations to expend moneys under the development agreement contingent upon
future appropriations as part of the local budget process. The development
agreement shall further provide that nothing in the agreement requires a city
or county to appropriate any such moneys.
(6)
A development agreement must state the assumptions underlying the agreement
that relate to the ability of the city or county to serve the development. The
development agreement must also specify the procedures to be followed when
there is a change in circumstances that affects compliance with the agreement.
(7)
A development agreement is binding upon a city or county pursuant to its terms
and for the duration specified in the agreement.
(8)
The maximum duration of a development agreement entered into with:
(a)
A city is 15 years; and
(b)
A county is seven years.
(9)
ORS 94.504 to 94.528 do not limit the authority of a city or county to take
action pursuant to ORS 456.270 to 456.295. [1993 c.780
§1; 2005 c.315 §1; 2007 c.691
§7]
Note: 94.504
to 94.528 were enacted into law by the Legislative Assembly but were not added
to or made a part of ORS chapter 94 or any series therein by legislative
action. See Preface to Oregon Revised Statutes for further explanation.
94.505
[Repealed by 1971 c.478 §1]
94.508 Approval by governing body;
findings; adoption. (1) A development agreement
shall not be approved by the governing body of a city or county unless the
governing body finds that the agreement is consistent with local regulations
then in place for the city or county.
(2)
The governing body of a city or county shall approve a development agreement or
amend a development agreement by adoption of an ordinance declaring approval or
setting forth the amendments to the agreement. Notwithstanding ORS 197.015
(10)(b), the approval or amendment of a development agreement is a land use
decision under ORS chapter 197. [1993 c.780 §2; 2005 c.22 §74; 2007 c.354 §27]
Note: See
note under 94.504.
94.510
[Repealed by 1971 c.478 §1]
94.513 Procedures on consideration and
approval. (1) A city or county may, by ordinance,
establish procedures and requirements for the consideration of development
agreements upon application by, or on behalf of, the owner of property on which
development is sought or another person having a legal or equitable interest in
that property.
(2)
Approval of a development agreement requires compliance with local regulations
and the approval of the city or county governing body after notice and hearing.
The notice of the hearing shall, in addition to any other requirements, state
the time and place of the public hearing and contain a brief statement of the
major terms of the proposed development agreement, including a description of
the area within the city or county that will be affected by the proposed
development agreement. [1993 c.780 §3]
Note: See
note under 94.504.
94.515
[Repealed by 1971 c.478 §1]
94.518 Application of local government law
and policies to agreement. Unless otherwise provided by the
development agreement, the comprehensive plan, zoning ordinances and other
rules and policies of the jurisdiction governing permitted uses of land,
density and design applicable to the development of the property subject to a
development agreement shall be the comprehensive plan and those ordinances,
rules and policies of the jurisdiction in effect at the time of approval of the
development agreement. [1993 c.780 §4]
Note: See
note under 94.504.
94.520
[Repealed by 1971 c.478 §1]
94.522 Amendment or cancellation of agreement;
enforceability. (1) A development agreement may
be amended or canceled by mutual consent of the parties to the agreement or
their successors in interest. The governing body of a city or county shall
amend or cancel a development agreement by adoption of an ordinance declaring
cancellation of the agreement or setting forth the amendments to the agreement.
(2)
Until a development agreement is canceled under this section, the terms of the
development agreement are enforceable by any party to the agreement. [1993 c.780 §5]
Note: See
note under 94.504.
94.525
[Repealed by 1971 c.478 §1]
94.528 Recording.
Not later than 10 days after the execution of a development agreement under ORS
94.504 to 94.528, the governing body of the city or county shall cause the
development agreement to be presented for recording in the office of the county
clerk of the county in which the property subject to the agreement is situated.
In addition to other provisions required by ORS 94.504 to 94.528, the
development agreement shall contain a legal description of the property subject
to the agreement. [1993 c.780 §6]
Note: See
note under 94.504.
94.530
[Repealed by 1971 c.478 §1]
TRANSFERABLE DEVELOPMENT CREDITS
94.531 Severable development interest in
real property; transferable development credit.
(1) The governing body of a city or county is authorized to recognize a
severable development interest in real property. The governing body of the city
or county may establish a system for the purchase and sale of development
interests. The interest transferred shall be known as a transferable
development credit. A transferable development credit shall include the ability
to establish in a location in the city or county a specified amount of
residential or nonresidential development that is different from development
types or exceeds development limitations provided in the applicable land use
regulations for the location. All development authorized or approved using
transferable development credits shall comply with the land use planning goals
adopted under ORS 197.225 and the acknowledged comprehensive plan.
(2)
The ability to develop land from which credits are transferred shall be reduced
by the amount of the development credits transferred, and development on the
land to which credits are transferred may be increased in accordance with a
transfer system formally adopted by the governing body of the city or county.
(3)
The holder of a recorded mortgage encumbering land from which credits are
transferred shall be given prior written notice of the proposed conveyance by
the record owner of the property and must consent to the conveyance before any
development credits may be transferred from the property.
(4)
A city or county with a transferable development credit system shall maintain a
registry of all lots or parcels from which credits have been transferred, the
lots or parcels to which credits have been transferred and the allowable
development level for each lot or parcel following transfer.
(5)
A city or county, or an elected official, appointed official, employee or agent
of a city or county, shall not be found liable for damages resulting from any
error made in:
(a)
Allowing the use of a transferable development credit that complies with an
adopted transferable development credit system and the acknowledged
comprehensive plan; or
(b)
Maintaining the registry required under subsection (4) of this section. [1999 c.573 §1]
Note: 94.531
was enacted into law by the Legislative Assembly but was not added to or made a
part of ORS chapter 94 or any series therein by legislative action. See Preface
to Oregon Revised Statutes for further explanation.
94.534 Policy on transferable development
credit systems. (1) The Legislative Assembly
finds that:
(a)
Working farms and forests make vital contributions to Oregon by:
(A)
Providing jobs, timber, agricultural products, tax base and other social and
economic benefits;
(B)
Helping to maintain soil, air and water resources;
(C)
Reducing levels of carbon dioxide in the atmosphere; and
(D)
Providing habitat for wildlife and aquatic life.
(b)
Natural resources, scenic and historic areas and open spaces promote a
sustainable and healthy environment and natural landscape that contributes to
the livability of Oregon.
(c)
Population growth, escalating land values, increasing risks due to wildfire and
invasive species and changes in land ownership and management objectives, with
a resulting increase in conflict caused between resource uses and dispersed
residential development, require that new methods be developed to facilitate
the continued management of private lands zoned for farm use, forest use and
mixed farm and forest use for the purposes of:
(A)
Agricultural production and timber harvest; and
(B)
Preservation of natural resources, scenic and historic areas and open spaces
for future generations.
(2)
The Legislative Assembly declares that transferable development credit systems:
(a)
Complement the statewide land use planning system in Oregon and encourage
effective local implementation of the statewide land use planning goals.
(b)
Provide incentives for private landowners, local, regional, state and federal
governments and other entities to permanently protect farm land and forestland,
including a land base for working farms, ranches, forests and woodlots,
significant natural resources, scenic and historic areas and open spaces.
(c)
Benefit rural land owners, including owners of working farms, ranches, forests
and woodlots, that voluntarily provide stewardship of natural resources on
private lands.
(d)
Provide voluntary and effective methods to help improve the livability of urban
areas and to mitigate and adapt to global climate change. [2009 c.504 §1]
Note: 94.534,
94.536 and 94.538 were enacted into law by the Legislative Assembly but were
not added to or made a part of ORS chapter 94 or any series therein by
legislative action. See Preface to Oregon Revised Statutes for further
explanation.
94.536 Definitions for ORS 94.536 and
94.538. As used in this section and ORS 94.538:
(1)
“Conservation easement” has the meaning given that term in ORS 271.715.
(2)
“Governmental unit” means a city, county, metropolitan service district or
state agency as defined in ORS 171.133.
(3)
“Holder” has the meaning given that term in ORS 271.715.
(4)
“Lot” has the meaning given that term in ORS 92.010.
(5)
“Parcel” has the meaning given that term in ORS 92.010.
(6)
“Receiving area” means a designated area of land to which a holder of
development credits generated from a sending area may transfer the development
credits and in which additional uses or development, not otherwise allowed, are
allowed by reason of the transfer.
(7)
“Resource land” means:
(a)
Lands outside an urban growth boundary planned and zoned for farm use, forest
use or mixed farm and forest use.
(b)
Lands inside or outside urban growth boundaries identified:
(A)
In an acknowledged local or regional government inventory as containing
significant wetland, riparian, wildlife habitat, historic, scenic or open space
resources; or
(B)
As containing important natural resources, estuaries, coastal shorelands, beaches and dunes or other resources described
in the statewide land use planning goals.
(c)
“Conservation Opportunity Areas” identified in the “Oregon Conservation
Strategy” adopted by the State Fish and Wildlife Commission and published by
the State Department of Fish and Wildlife in September of 2006.
(8)
“Sending area” means a designated area of resource land from which development
credits generated from forgone development are transferable, for uses or
development not otherwise allowed, to a receiving area.
(9)
“Tract” has the meaning given that term in ORS 215.010.
(10)
“Transferable development credit” means a severable development interest in
real property that can be transferred from a lot, parcel or tract in a sending
area to a lot, parcel or tract in a receiving area.
(11)
“Transferable development credit system” means a land use planning tool that
allows the record owner of a lot, parcel or tract of resource land in a sending
area to voluntarily sever and sell development interests from the lot, parcel
or tract for purchase and use by a potential developer to develop a lot, parcel
or tract in a receiving area at a higher intensity than otherwise allowed.
(12)
“Urban growth boundary” has the meaning given that term in ORS 195.060.
(13)
“Urban reserve” has the meaning given that term in ORS 195.137. [2009 c.504 §2; 2010 c.5 §1]
Note: See
note under 94.534.
94.538 Transferable development credit
systems. (1) One or more governmental units may
establish a transferable development credit system, including a process for
allowing transfer of development interests from a sending area within the jurisdiction
of one governmental unit to a receiving area within the jurisdiction of another
governmental unit.
(2)
If the transferable development credit system allows transfer of development
interests between the jurisdictions of different governmental units, the
process must be described in an intergovernmental agreement under ORS 190.003
to 190.130 entered into by the governmental units with land use jurisdiction
over the sending and receiving areas and, for purposes of administration of the
process, the Department of Land Conservation and Development. The
intergovernmental agreement may contain provisions for sharing between
governmental units of the prospective ad valorem tax revenues derived from new
development in the receiving area authorized under the system.
(3)
A transferable development credit system must provide for:
(a)
The record owner of a lot, parcel or tract in a sending area to voluntarily
sever and sell development interests of the lot, parcel or tract for use in a
receiving area;
(b)
A potential developer of land in a receiving area to purchase transferable
development credits that allow a higher intensity use or development of the
land, including development bonuses or other incentives not otherwise allowed,
through changes to the planning and zoning or waivers of density, height or
bulk limitations in the receiving area;
(c)
The governmental units administering the system to determine the type, extent
and intensity of uses or development allowed in the receiving area, based on
the transferable development credits generated from severed and sold
development interests; and
(d)
The holder of a recorded instrument encumbering a lot, parcel or tract from
which the record owner proposes to sever development interests for transfer to
be given prior written notice of the proposed transaction and to approve or
disapprove the transaction.
(4)
A transferable development credit system must offer:
(a)
Incentives for a record owner of resource land to voluntarily prohibit or limit
development on the resource land and to sell or transfer forgone development to
lands within receiving areas.
(b)
Benefits to landowners by providing monetary compensation for limiting
development in sending areas.
(c)
Benefits to developers by allowing increased development and development
incentives in receiving areas.
(5)
The governmental units administering a transferable development credit system
must:
(a)
Designate sending areas that are chosen to achieve the requirements set forth
in this section and the objectives set forth in ORS 94.534.
(b)
Designate receiving areas that are chosen to achieve the requirements set forth
in this section and the objectives set forth in ORS 94.534.
(c)
Provide development bonuses and incentives to stimulate the demand for the purchase
and sale of transferable development credits.
(d)
Require that the record owner of development interests transferred as
development credits from a sending area to a receiving area cause to be
recorded, in the deed records of the county in which the sending area is
located, a conservation easement that:
(A)
Limits development of the lot, parcel or tract from which the interests are
severed consistent with the transfer; and
(B)
Names an entity, approved by the governmental units administering the system,
as the holder of the conservation easement.
(e)
Maintain records of:
(A)
The lots, parcels and tracts from which development interests have been
severed;
(B)
The lots, parcels and tracts to which transferable development credits have
been transferred; and
(C)
The allowable level of use or development for each lot, parcel or tract after a
transfer of development credits.
(f)
Provide periodic summary reports of activities of the system to the department.
(6)
A receiving area must be composed of land that is within an urban growth
boundary or, subject to subsection (7) of this section, within an urban reserve
established under ORS 195.137 to 195.145 and that is:
(a)
Appropriate and suitable for development.
(b)
Not subject to limitations designed to protect natural resources, scenic and
historic areas, open spaces or other resources protected under the statewide
land use planning goals.
(c)
Not within an area identified as a priority area for protection in the “Oregon
Conservation Strategy” adopted by the State Fish and Wildlife Commission and
published by the State Department of Fish and Wildlife in September of 2006.
(d)
Not within a “Conservation Opportunity Area” identified in the “Oregon
Conservation Strategy” adopted by the State Fish and Wildlife Commission and
published by the State Department of Fish and Wildlife in September of 2006.
(7)
Land within an urban reserve:
(a)
May be the site of a receiving area only if:
(A)
The receiving area is likely to be brought within an urban growth boundary at
the next periodic review under ORS 197.628 to 197.651 or legislative review
under ORS 197.626; and
(B)
Development pursuant to the transferable development credits is allowed only
after the receiving area is brought within an urban growth boundary.
(b)
That is selected for use as a receiving area may be designated for priority
inclusion in the urban growth boundary, when the urban growth boundary is
amended, if the land qualifies under the boundary location factors in a goal
relating to urbanization.
(8)
The governing body of a governmental unit administering a transferable
development credit system may, directly or indirectly through a contract with a
nonprofit corporation, establish a transferable development credit bank to
facilitate:
(a)
Buying severable development interests from lots, parcels or tracts of resource
land in a sending area.
(b)
Selling transferable development credits to potential developers of lots,
parcels or tracts in a receiving area.
(c)
Entering into agreements or contracts and performing acts necessary, convenient
or desirable to achieve the requirements set forth in this section and the
objectives set forth in ORS 94.534.
(d)
Managing funds available for the purchase and sale of transferable development
credits.
(e)
Authorizing and monitoring expenditures associated with the system.
(f)
Maintaining records of the transactions, including dates, purchase amounts and
locations of severed development interests and development pursuant to
transferred development credits, that are sufficient to manage and evaluate the
effectiveness of the system.
(g)
Providing periodic summary reports of activities of the system to the governing
body of a governmental unit administering the system.
(h)
Obtaining appraisals of development interests and transferable development
credits as necessary and pricing transferable development credits for purchase
or sale.
(i) Serving as a clearinghouse and information source for
buyers and sellers of transferable development credits.
(j)
Accepting donations of transferable development credits.
(k)
Soliciting and receiving grant funds for the implementation of this section and
ORS 94.536.
(9)
A holder of a conservation easement shall hold, monitor and enforce the
conservation easement to ensure that lands in sending areas do not retain
development credits transferred under this section and ORS 94.536. [2009 c.504 §3; 2010 c.5 §2]
Note: See
note under 94.534.
Note:
Section 4, chapter 504, Oregon Laws 2009, provides:
Sec. 4. The
Department of Land Conservation and Development shall make a report, in the
manner described in ORS 192.245, to the Seventy-seventh Legislative Assembly:
(1)
Evaluating the transferable development credit systems that have been
established under sections 2 [94.536] and 3 [94.538] of this 2009 Act; and
(2)
Recommending whether the program should be continued, modified, expanded or
terminated. [2009 c.504 §4]
94.540
[Repealed by 1971 c.478 §1]
PLANNED COMMUNITIES
(General Provisions)
94.550 Definitions for ORS 94.550 to
94.783. As used in ORS 94.550 to 94.783:
(1)
“Assessment” means any charge imposed or levied by a homeowners association on
or against an owner or lot pursuant to the provisions of the declaration or the
bylaws of the planned community or provisions of ORS 94.550 to 94.783.
(2)
“Blanket encumbrance” means a trust deed or mortgage or any other lien or
encumbrance, mechanic’s lien or otherwise, securing or evidencing the payment
of money and affecting more than one lot in a planned community, or an agreement
affecting more than one lot by which the developer holds such planned community
under an option, contract to sell or trust agreement.
(3)
“Class I planned community” means a planned community that:
(a)
Contains at least 13 lots or in which the declarant
has reserved the right to increase the total number of lots beyond 12; and
(b)
Has an estimated annual assessment, including an amount required for reserves
under ORS 94.595, exceeding $10,000 for all lots or $100 per lot, whichever is
greater, based on:
(A)
For a planned community created on or after January 1, 2002, the initial
estimated annual assessment, including a constructive assessment based on a
subsidy of the association through a contribution of funds, goods or services
by the declarant; or
(B)
For a planned community created before January 1, 2002, a reasonable estimate
of the cost of fulfilling existing obligations imposed by the declaration,
bylaws or other governing document as of January 1, 2002.
(4)
“Class II planned community” means a planned community that:
(a)
Is not a Class I planned community;
(b)
Contains at least five lots; and
(c)
Has an estimated annual assessment exceeding $1,000 for all lots based on:
(A)
For a planned community created on or after January 1, 2002, the initial
estimated annual assessment, including a constructive assessment based on a
subsidy of the association through a contribution of funds, goods or services
by the declarant; or
(B)
For a planned community created before January 1, 2002, a reasonable estimate
of the cost of fulfilling existing obligations imposed by the declaration,
bylaws or other governing document as of January 1, 2002.
(5)
“Class III planned community” means a planned community that is not a Class I
or II planned community.
(6)
“Common expenses” means expenditures made by or financial liabilities incurred
by the homeowners association and includes any allocations to the reserve
account under ORS 94.595.
(7)
“Common property” means any real property or interest in real property within a
planned community which is owned, held or leased by the homeowners association
or owned as tenants in common by the lot owners, or designated in the
declaration or the plat for transfer to the association.
(8)
“Condominium” means property submitted to the provisions of ORS chapter 100.
(9)
“Declarant” means any person who creates a planned
community under ORS 94.550 to 94.785.
(10)
“Declarant control” means any special declarant right relating to administrative control of a
homeowners association, including but not limited to:
(a)
The right of the declarant or person designated by
the declarant to appoint or remove an officer or a
member of the board of directors;
(b)
Any weighted vote or special voting right granted to a declarant
or to units owned by the declarant so that the declarant will hold a majority of the voting rights in the
association by virtue of such weighted vote or special voting right; and
(c)
The right of the declarant to exercise powers and
responsibilities otherwise assigned by the declaration or bylaws or by the
provisions of ORS 94.550 to 94.783 to the association, officers of the
association or board of directors of the association.
(11)
“Declaration” means the instrument described in ORS 94.580 which establishes a
planned community, and any amendments to the instrument.
(12)
“Governing document” means an instrument or plat relating to common ownership
or common maintenance of a portion of a planned community and that is binding
upon lots within the planned community.
(13)
“Homeowners association” or “association” means the organization of owners of
lots in a planned community, created under ORS 94.625, required by a governing
document or formed under ORS 94.572.
(14)
“Majority” or “majority of votes” or “majority of owners” means more than 50
percent of the votes in the planned community.
(15)
“Mortgagee” means any person who is:
(a)
A mortgagee under a mortgage;
(b)
A beneficiary under a trust deed; or
(c)
The vendor under a land sale contract.
(16)
“Owner” means the owner of any lot in a planned community, unless otherwise
specified, but does not include a person holding only a security interest in a
lot.
(17)
“Percent of owners” or “percentage of owners” means the owners representing the
specified voting rights as determined under ORS 94.658.
(18)(a)
“Planned community” means any subdivision under ORS 92.010 to 92.192 that
results in a pattern of ownership of real property and all the buildings,
improvements and rights located on or belonging to the real property, in which
the owners collectively are responsible for the maintenance, operation,
insurance or other expenses relating to any property within the planned
community, including common property, if any, or for the exterior maintenance
of any property that is individually owned.
(b)
“Planned community” does not mean:
(A)
A condominium under ORS chapter 100;
(B)
A planned community that is exclusively commercial or industrial; or
(C)
A timeshare plan under ORS 94.803 to 94.945.
(19)
“Purchaser” means any person other than a declarant
who, by means of a voluntary transfer, acquires a legal or equitable interest
in a lot, other than as security for an obligation.
(20)
“Purchaser for resale” means any person who purchases from the declarant more than two lots for the purpose of resale
whether or not the purchaser for resale makes improvements to the lots before
reselling them.
(21)
“Special declarant rights” means any rights, in
addition to the rights of the declarant as a lot
owner, reserved for the benefit of the declarant
under the declaration or ORS 94.550 to 94.783, including but not limited to:
(a)
Constructing or completing construction of improvements in the planned
community which are described in the declaration;
(b)
Expanding the planned community or withdrawing property from the planned
community under ORS 94.580 (3) and (4);
(c)
Converting lots into common property;
(d)
Making the planned community subject to a master association under ORS 94.695;
or
(e)
Exercising any right of declarant control reserved
under ORS 94.600.
(22)
“Successor declarant” means the transferee of any
special declarant right.
(23)
“Turn over” means the act of turning over administrative responsibility
pursuant to ORS 94.609 and 94.616.
(24)
“Unit” means a building or portion of a building located upon a lot in a
planned community and designated for separate occupancy or ownership, but does
not include any building or portion of a building located on common property.
(25)
“Votes” means the votes allocated to lots in the declaration under ORS 94.580
(2). [1981 c.782 §3; 1999 c.677
§1; 2001 c.756 §5; 2003 c.569
§3; 2007 c.410 §1]
94.560 Legislative findings.
The Legislative Assembly finds that:
(1)
In the State of Oregon there are hundreds of homeowners associations to which
the Oregon Condominium Law (ORS chapter 100) does not apply.
(2)
These homeowners associations have established a pattern of ownership in which
ownership of a single unit makes the owner automatically a member of a
homeowners association with responsibilities for management and maintenance.
(3)
Many of these homeowners associations as associations and their members as
individuals have experienced problems from the lack of statutory provisions.
These problems which have arisen are usually the result of inexperience with
this kind of ownership. This inexperience often leads to difficulties for the
association when it assumes responsibility for the administration of the
planned development because usually neither the developer who drafted the documents
nor the local jurisdiction which may have reviewed them has realized the long
term management implications of the restrictions imposed by the documents. The
most serious and frequent error is imposing excessive voting requirements for
any changes in the documents, a basic error that makes it and other errors
unnecessarily difficult, if not impossible, to correct. Of almost equal
importance is the lack of disclosure of significant differences this pattern of
ownership imposes on the homeowner and the restrictions on choice that must be
accepted.
(4)
Oregon land conservation policies and the increasing cost of land will result
in rapid growth of this kind of homeownership pattern.
(5)
It is a matter of statewide concern that the Legislative Assembly address
problems associated with homeowners associations in order to make this kind of
homeownership pattern an acceptable choice and in order to assure proper
maintenance of the projects so that the investment of the owners and the
appearance of Oregon communities are protected.
(6)
It is essential that the Legislative Assembly establish basic statutory
requirements for disclosure to first and subsequent buyers, for the
organization of the homeowners association, and for a process by which
administrative responsibility for the planned community is transferred from the
developer to the association of individual owners.
(7)
ORS 94.550 to 94.783 are intended to make developers, their legal counsel and
homeowners in Oregon homeowners associations the beneficiaries of experience
accumulated under Oregon’s condominium law and gathered from members of
existing Oregon homeowners associations and associations in parts of the
country where the record of experience is longer than that in Oregon. [1981 c.782 §3a]
(Creation of Planned Community)
94.565 Planned community to be created
under ORS 94.550 to 94.783; exception; conveyance of lot or unit prohibited
until declaration recorded. (1) Except as provided in ORS
94.570, a person may not create a planned community in this state except as
provided in ORS 94.550 to 94.783.
(2)
A person may not convey any lot or unit in a planned community until the
planned community is created by the recording of the declaration for the
planned community with the county recording officer of each county in which the
planned community is located. [1981 c.782 §5; 1999 c.677 §2; 2001 c.756 §6]
94.570 Applicability of ORS 94.550 to
94.783. (1) ORS 94.550 to 94.783 apply to a
planned community created before January 1, 2002, under ORS 94.550 to 94.783
and to a Class I planned community created on or after January 1, 2002.
(2)
ORS 94.550 to 94.783, except for ORS 94.595 and 94.604, apply to a Class II
planned community created on or after January 1, 2002.
(3)
Notwithstanding any other provision of ORS 94.550 to 94.783, ORS 94.550 to
94.783 apply to a Class III planned community or a planned community that is
exclusively commercial or industrial and that is created on or after January 1,
2002, if the declaration of the planned community so provides.
(4)
Nothing in ORS 94.550 to 94.783 prohibits the establishment of a condominium
subject to ORS chapter 100 or a timeshare plan subject to ORS 94.803 to 94.945
within a planned community. [1981 c.782 §6; 1983 c.530 §52; 1985 c.76 §3; 1999 c.677 §3; 2001 c.756 §7; 2003 c.569 §4]
94.572 Applicability of certain provisions
of ORS 94.550 to 94.783 to Class I or Class II planned communities.
(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, 94.626, 94.630 (1), (3) and (4),
94.639, 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 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, 94.626, 94.630 (1), (3) and (4), 94.639, 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. Nothing in this paragraph requires the owners to amend a declaration or
bylaws to include the information required by ORS 94.580 or 94.635.
(B)
If there are no procedures for amendment in the governing documents:
(i) For an amendment to a recorded governing document other
than bylaws, the owners may amend the inconsistent provisions of the document
to conform to this section and ORS 94.550, 94.590, 94.595 (5) to (9), 94.625,
94.626, 94.630 (1), (3) and (4), 94.639, 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 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, 94.626, 94.630 (1), (3) and (4), 94.639, 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 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 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 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 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. [2001 c.756
§3; 2003 c.569 §5; 2005 c.543
§3; 2007 c.409 §33; 2009 c.641
§3a]
94.575 Applicability of subdivision law.
ORS 92.010 to 92.170 apply to a planned community established under ORS 94.550
to 94.783. [1981 c.782 §4]
94.580 Declaration; recordation; contents.
(1) A declarant shall record, in accordance with ORS
94.565, the declaration for a planned community in the office of the recording
officer of each county in which the planned community is located.
(2)
The declaration shall include:
(a)
The name and classification of the planned community;
(b)
The name of the association and the type of entity formed in accordance with
ORS 94.625;
(c)
A statement that the planned community is subject to ORS 94.550 to 94.783;
(d)
A statement that the bylaws adopted under ORS 94.625 must be recorded;
(e)
A legal description, as required under ORS 93.600, of the real property
included in the planned community;
(f)
A legal description, as required under ORS 93.600, of any real property
included in the planned community which is or must become a common property;
(g)
A description of any special declarant rights other
than the rights described under subsections (3) and (4) of this section;
(h)
A statement of the number of votes allocated to each lot in accordance with ORS
94.658;
(i) A method of determining the liability of each lot for
common expenses and the right of each lot to any common profits of the
association;
(j)
A statement of when the lots, including lots owned by the declarant,
become subject to assessment;
(k)
If a Class I planned community, provisions for establishing a reserve account
and for the preparation, review and update of the reserve study and the
maintenance plan as required by ORS 94.595;
(L)
Any restrictions on the alienation of lots. Any such restriction created by any
document other than the declaration may be incorporated by reference to the
official records of the county where the property is located;
(m)
A statement of the use, residential or otherwise, for which each lot is
intended;
(n)
A statement as to whether or not the association pursuant to ORS 94.665 may
sell, convey or subject to a security interest any portion of the common
property and any limitation on such authority;
(o)
A statement of any restriction on the use, maintenance or occupancy of lots or
units;
(p)
The method of amending the declaration and a statement of the percentage of
votes required to approve an amendment of the declaration in accordance with
ORS 94.590;
(q)
A description of any contemplated improvements which the declarant
agrees to build, or a statement that the declarant
does not agree to build any improvement or does not choose to limit declarant’s rights to add improvements not described in the
declaration;
(r)
A statement of any period of declarant control or
other special declarant rights reserved by the declarant under ORS 94.600;
(s)
A statement of the time at which the deed to the common property is to be
delivered, whether by date or upon the occurrence of a stipulated event; and
(t)
Any provisions restricting a right of the association with respect to the
common property, or an individual lot owner with respect to the lot or
improvements on the lot, including but not limited to:
(A)
A right to divide the lot or to combine it with other lots;
(B)
A right to repair or restore improvements on the lot at the owner’s discretion
in the event of damage or destruction;
(C)
The requirement for architectural controls, including but not limited to
fencing, landscaping or choice of exterior colors and materials of structures
to be placed on the common property or on a lot; and
(D)
The requirement of review of any plans of any structure to be placed on the
common property or a lot.
(3)
If the declarant reserves the right to expand the
planned community by annexing lots or common property or by creating additional
lots or common property by developing existing property in the planned
community, the declaration shall contain, in addition to the provisions
required under subsections (1) and (2) of this section, a general description
of the plan of development including:
(a)
The procedure by which the planned community will be expanded;
(b)
The maximum number of lots and units to be included in the planned community or
a statement that there is no limitation on the number of lots or units which
the declarant may create or annex to the planned
community;
(c)
A general description of the nature and proposed use of any common property
which the declarant agrees to create or annex to the
planned community or a statement that there is no limitation on the right of
the declarant to create or annex common property;
(d)
The method of allocation of votes if additional lots are to be created or
annexed to the planned community; and
(e)
The formula to be used for reallocating the common expenses if additional lots
are to be created or annexed to the planned community, and the manner of
reapportioning the common expenses if lots are created or annexed during the
fiscal year.
(4)
If the declarant may withdraw property from the
planned community, the declaration shall include in addition to the provisions
required under subsections (1), (2) and (3) of this section:
(a)
The procedure by which property will be withdrawn;
(b)
A general description of the property which may be withdrawn from the planned
community;
(c)
The method of allocation of votes if lots are withdrawn from the planned
community;
(d)
The formula to be used for reallocating the common expenses if the property to
be withdrawn has been assessed for common expenses prior to withdrawal; and
(e)
The date after which the right to withdraw property from the planned community
shall expire or a statement that such a right shall not expire. [1981 c.782 §12; 1999 c.677 §4; 2001 c.756 §8; 2003 c.569 §6; 2007 c.409 §6a]
94.585 Authority to amend declaration and
initial bylaws to comply with federal or state laws.
A declarant may amend the declaration or initial
bylaws in order to comply with requirements of the Federal Housing
Administration, the United States Department of Veterans Affairs, Rural
Development or the Farm Service Agency of the United States Department of
Agriculture, the Federal National Mortgage Association, the Government National
Mortgage Association, the Federal Home Loan Mortgage Corporation, any
department, bureau, board, commission or agency of the United States or the
State of Oregon or any corporation wholly owned, directly or indirectly, by the
United States or the State of Oregon that insures, guarantees or provides
financing for a planned community or lots in a planned community. However, if
the need to amend the declaration or the initial bylaws occurs after the
turnover to the homeowners association has occurred, the amendment must be
approved by the association in accordance with the approval provisions of the
declaration or bylaws. [1981 c.782 §19; 1991 c.67 §18; 1999 c.677 §6; 2007 c.71 §26]
94.590 Amendment of declaration by owners.
(1)(a) The declaration may be amended only with the approval of owners
representing at least 75 percent of the total votes in the planned community or
any larger percentage specified in the declaration.
(b)
An amendment under this section may not:
(A)
Limit or diminish any right of a declarant reserved
under ORS 94.580 (3) or (4) or any other special declarant
right without the consent of the declarant. A declarant may waive the declarant’s
right of consent.
(B)
Change the boundaries of any lot or any uses to which any lot or unit is
restricted as stated in the declaration under ORS 94.580 (2)(m) or change 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
lot or unit unless the owners of the affected lots or units unanimously consent
to the amendment.
(c)
Any changes to the plat, including required approvals
or consents of owners or others, are governed by the applicable provisions of
ORS 92.010 to 92.192.
(2)(a)
Unless otherwise provided in the declaration, an amendment to the declaration
may be proposed by a majority of the board of directors or by at least 30
percent of the owners in the planned community.
(b)
When the association adopts an amendment to the declaration, the association
shall record the amendment in the office of the recording officer in each
county in which the planned community is located. An amendment of the
declaration is effective only upon recordation.
(3)
Notwithstanding a provision in a declaration that requires amendments to be
executed and acknowledged by all owners approving the amendment, amendments to
a declaration under this section shall be executed and certified on behalf of
the association by the president and secretary as being adopted in accordance
with the declaration and the provisions of this section and acknowledged in the
manner provided for acknowledgment of deeds.
(4)
An amendment to a declaration or plat shall be conclusively presumed to have
been regularly adopted in compliance with all applicable procedures relating to
such amendment unless an action is brought within one year after the date such
amendment was recorded or the face of the recorded amendment indicates that the
amendment received the approval of fewer votes than required for such approval.
However, nothing in this subsection shall prevent the further amendment of an
amended declaration or plat.
(5)
During any period of declarant control, voting on an
amendment under subsection (1) of this section shall be without regard to any
weighted vote or special voting right reserved by the declarant
except as otherwise provided under ORS 94.585. Nothing in this subsection is
intended to prohibit a declarant from reserving the
right to require the declarant’s consent to an
amendment during the period reserved in the declaration for declarant
control.
(6)
The board of directors, upon the adoption of a resolution, may cause a restated
declaration to be prepared and recorded to codify individual amendments that
have been adopted in accordance with this section or ORS 94.585 without the
further approval of owners. A declaration restated under this subsection must:
(a)
Include all previously adopted amendments 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 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 in effect being
codified;
(d)
Include a certification by the president and secretary of the association that
the restated declaration includes all previously adopted amendments in effect
and no other changes except, if applicable, to correct scriveners’ errors or to
conform format 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. [1981 c.782 §21; 1999 c.677
§5; 2001 c.756 §9; 2003 c.569
§7; 2007 c.410 §22]
94.595 Reserve account for maintaining,
repairing and replacing common property; reserve study; maintenance plan.
(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 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. 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
(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)
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)(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. [1981 c.782
§15; 1999 c.677 §7; 2001 c.756
§10; 2003 c.569 §8; 2005 c.543
§1; 2007 c.409 §7; 2009 c.641
§4]
(Declarant
Control; Turnover of Administrative Control)
94.600 Declarant
control of association. (1) Subject to ORS 94.604 to
94.621, a declaration may reserve special declarant
rights including, without limitation, the right to a period of declarant control that may be of limited or unlimited
duration. A formal or written proxy or power of attorney is not required from
an owner to vest the declarant with such authority.
(2)
A declarant may voluntarily relinquish any rights
reserved in the declaration under subsection (1) of this section.
(3)
Upon the expiration of any period of declarant
control reserved in the declaration under subsection (1) of this section, the
rights automatically shall pass to the lot owners, including the declarant if the declarant owns a
lot in the planned community.
(4)
A declarant may not amend a declaration to increase
the scope of special declarant rights reserved in the
declaration after the sale of the first lot in the planned community unless
owners representing 75 percent of the total vote, other than the declarant, agree to the amendment. [1981 c.782 §11; 1999 c.677 §8]
94.604 Transitional advisory committee.
(1) As provided in this section, the declarant or the
owners of a planned community that contains at least 20 lots in either the
initial development or with the annexation of additional property shall form a
transitional advisory committee to provide for the transition from
administrative responsibility by the declarant of the
planned community under ORS 94.600 to administrative responsibility by the
association. The declarant shall call a meeting of
owners for the purpose of selecting a transitional advisory committee not later
than the 60th day after the date the declarant
conveys 50 percent or more of the lots then existing in the planned community
to owners other than a successor declarant.
(2)
The transitional advisory committee shall consist of three or more members. The
owners, other than the declarant, shall select two or
more members. The declarant may select no more than
one member. The committee shall have reasonable access to all information and
documents which the declarant is required to turn
over to the association under ORS 94.616.
(3)
An owner may call a meeting of owners to select the transitional advisory
committee if the declarant fails to do so under
subsection (1) of this section.
(4)
Notwithstanding subsection (1) of this section, if the owners do not select
members for the transitional advisory committee under subsection (2) of this
section, the declarant shall have no further
obligation to form the committee.
(5)
The requirement for a transitional advisory committee shall not apply once the
turnover meeting called under ORS 94.609 has been held. [1981 c.782 §64; 1999 c.677 §9; 2003 c.569 §9]
94.605
[Amended by 1965 c.619 §31; repealed by 1971 c.478 §1]
94.609 Notice of meeting to turn over administrative
responsibility. (1) At the time specified in the
declaration, but not later than 90 days after expiration of any period of declarant control reserved under ORS 94.600, or 90 days
after conveying 10 lots in the planned community if there is not a period of declarant control, the declarant
shall call a meeting for the purpose of turning over administrative
responsibility for the planned community to the homeowners association.
(2)
The declarant shall give notice of the meeting to
each owner as provided in the bylaws.
(3)
If the declarant does not call a meeting under this
section within the required time, the transitional advisory committee formed
under ORS 94.604 or any owner may call a meeting and give notice as required in
this section. [1981 c.782 §65; 1999 c.677 §10]
94.610
[Amended by 1965 c.619 §32; repealed by 1971 c.478 §1]
94.615
[Repealed by 1971 c.478 §1]
94.616 Turnover meeting; transfer of administration;
receivership. (1) At the meeting called under ORS
94.609, the declarant shall turn over to the
homeowners association the responsibility for the administration of the planned
community, and the association shall accept the administrative responsibility
from the declarant.
(2)
If a quorum of the owners is present, the owners shall elect not fewer than the
number of directors sufficient to constitute a quorum of the board of directors
in accordance with the declaration or bylaws of the association.
(3)
At the meeting called under ORS 94.609, the declarant
shall deliver to the association:
(a)
The original or a photocopy of the recorded declaration and copies of the
bylaws and the articles of incorporation, if any, of the planned community and
any supplements and amendments to the articles or bylaws;
(b)
A deed to the common property in the planned community, unless otherwise
provided in the declaration;
(c)
The minute books, including all minutes, and other books and records of the
association and the board of directors;
(d)
All rules and regulations adopted by the declarant;
(e)
Resignations of officers and members of the board of directors who are required
to resign because of the expiration of any period of declarant
control reserved pursuant to ORS 94.600;
(f)
A financial statement. The financial statement:
(A)
Must consist of a balance sheet and an income and expense statement for the
preceding 12-month period or the period following the recording of the
declaration, whichever period is shorter; and
(B)
Must be reviewed, in accordance with the Statements on Standards for Accounting
and Review Services issued by the American Institute of Certified Public
Accountants, by an independent certified public accountant licensed in the
State of Oregon if the annual assessments of an association exceed $75,000;
(g)
All funds of the association and control of the funds, including all bank
records;
(h)
All tangible personal property that is property of the association, and an
inventory of the property;
(i) Records of all property tax payments for the common
property to be administered by the association;
(j)
Copies of any income tax returns filed by the declarant
in the name of the association, and supporting records for the returns;
(k)
All bank signature cards;
(L)
The reserve account established in the name of the association under ORS
94.595;
(m)
The reserve study and the maintenance plan required under ORS 94.595, including
all updates and other sources of information that serve as a basis for
calculating reserves in accordance with ORS 94.595;
(n)
An operating budget for the portion of the planned community turned over to
association administration and a budget for replacement and maintenance of the
common property;
(o)
A copy of the following, if available:
(A)
The as-built architectural, structural, engineering, mechanical, electrical and
plumbing plans;
(B)
The original specifications, indicating all subsequent material changes;
(C)
The plans for underground site service, site grading, drainage and landscaping
together with cable television drawings;
(D)
Any other plans and information relevant to future repair or maintenance of the
property; and
(E)
A list of the general contractor and the electrical, heating and plumbing
subcontractors responsible for construction or installation of common property;
(p)
Insurance policies;
(q)
Copies of any occupancy permits issued for the planned community;
(r)
Any other permits issued by governmental bodies applicable to the planned
community in force or issued within one year before the date on which the
owners assume administrative responsibility;
(s)
A list of any written warranties on the common property that are in effect and
the names of the contractor, subcontractor or supplier who made the
installation for which the warranty is in effect;
(t)
A roster of owners and their addresses and telephone numbers, if known, as
shown on the records of the declarant;
(u)
Leases of the common property and any other leases to which the association is
a party;
(v)
Employment or service contracts in which the association is one of the
contracting parties or service contracts in which the association or the owners
have an obligation or responsibility, directly or indirectly, to pay some or
all of the fee or charge of the person performing the service; and
(w)
Any other contracts to which the homeowners association is a party.
(4)
In order to facilitate an orderly transition, during the three-month period
following the turnover meeting, the declarant or an
informed representative shall be available to meet with the board of directors
on at least three mutually acceptable dates to review the documents delivered
under subsection (3) of this section.
(5)
If the declarant has complied with this section and
unless the declarant has sufficient voting rights as
a lot owner to control the association, the declarant
is not responsible for the failure of the owners to elect the number of
directors sufficient to constitute a quorum of the board of directors and
assume control of the association in accordance with subsection (1) of this
section. The declarant is relieved from further
responsibility for the administration of the association, except as a lot
owner.
(6)
If the owners present do not constitute a quorum or the owners fail to elect
the number of directors sufficient to constitute a quorum of the board of directors
at the turnover meeting held in accordance with this section:
(a)
At any time before the election of the number of directors sufficient to
constitute a quorum, an owner or first mortgagee may call a special meeting for
the purpose of election of directors and shall give notice of the meeting in
accordance with the notice requirements in the bylaws for special meetings. The
owners and first mortgagees present at the special meeting shall select a
person to preside over the meeting.
(b)
An owner or first mortgagee may request a court to appoint a receiver as
provided in ORS 94.642. [1981 c.782 §67; 1983 c.206 §3; 1999 c.677 §11; 2001 c.756 §11; 2003 c.803 §19; 2007 c.409 §8]
94.620
[Repealed by 1971 c.478 §1]
94.621 Rights of declarant
following turnover meeting. If a declarant
has not completed development of lots or common property in a planned community
at the time of the meeting called under ORS 94.609, the declarant
may continue to hold the special declarant rights,
other than a right of declarant control, reserved
under the declaration. [1981 c.782 §68; 1999 c.677 §12]
94.622 Obligations and liabilities arising
from transfer of special declarant rights.
(1) As used in this section, “affiliate” means any person who controls a
transferor or successor declarant, is controlled by a
transferor or successor declarant or is under common
control with a transferor or successor declarant.
(2)
A person controls or is controlled by a transferor or successor declarant if the person:
(a)
Is a general partner, officer, director or employee;
(b)
Directly or indirectly, or acting in concert with one or more other persons or
through one or more subsidiaries, owns, controls, holds with power to vote, or
holds proxies representing more than 20 percent of the voting interests of the
transferor or successor declarant;
(c)
Controls in any manner the election of a majority of the members of the board
of directors; or
(d)
Has contributed more than 20 percent of the capital of the transferor or
successor declarant.
(3)
Upon the transfer of any special declarant right, the
liabilities and obligations of a transferor are as follows:
(a)
A transferor is not relieved of any obligation or liability arising before the
transfer. Lack of privity does not deprive any owner
of standing to bring an action to enforce any obligation of the transferor.
(b)
If a transferor retains any special declarant right,
or if a successor declarant is an affiliate of the
transferor, the transferor is subject to liability for all obligations and
liabilities imposed on a declarant by the provisions
of ORS 94.550 to 94.783 or by the declaration or bylaws arising after the
transfer and is jointly and severally liable with the successor declarant for the liabilities and obligations of the successor
declarant that relate to the special declarant rights.
(c)
A transferor who does not retain special declarant
rights does not have an obligation or liability for an act or omission or for a
breach of a contractual obligation arising from the exercise of a special declarant right by a successor declarant
who is not an affiliate of the transferor.
(4)
Upon transfer of any special declarant right, the
liabilities and obligations of a successor declarant
are as follows:
(a)
A successor declarant who is an affiliate of the
transferor is subject to all obligations and liabilities imposed on a declarant by the provisions of this chapter or by the
declaration or bylaws.
(b)
A successor declarant who is not an affiliate of the
transferor is not liable for any misrepresentations or warranties made or
required to be made by the declarant or previous
successor declarant or for any breach of fiduciary
obligation by such person. Such a successor declarant,
however, shall comply with any provisions of the declaration and bylaws that
pertain to such successor declarant’s ownership of
the lot or lots and the exercise of any special declarant
right. [1999 c.677 §34; 2011 c.532
§1]
94.623 Acquisition of special declarant rights by successor declarant;
exceptions. (1) Except as otherwise provided in
subsections (2) and (3) of this section, a developer, vendor under a land sale
contract, mortgagee of a mortgage or beneficiary of a trust deed affecting the declarant’s interest in the property shall acquire all
special declarant rights of the transferor upon
transfer by the declarant or prior successor declarant of all of such transferor’s interest in a planned
community, unless:
(a)
The conveyance evidences an intent not to transfer any special declarant rights;
(b)
An instrument executed by the transferor and the transferee evidences an intent
not to transfer any special declarant rights and is
recorded in the office of the recording officer of every county in which the
property is located; or
(c)
The transferee executes an instrument disclaiming any right to exercise any
special declarant rights and such instrument is
recorded in the office of the recording officer of every county in which the
property is located.
(2)
A transferee under subsection (1) of this section shall acquire less than all
special declarant rights if:
(a)
The conveyance from the transferor or an instrument executed by the transferor
and the transferee evidences an intent to transfer less than all special declarant rights and states the specific rights being
transferred, and such instrument is recorded in the office of the recording
officer of every county in which the property is located; or
(b)
The transferee executes an instrument disclaiming specific special declarant rights and the instrument is recorded in the
office of the recording officer of every county in which the property is
located.
(3)
When a transferee acquires all of the declarant’s
interest in the planned community in which the declarant
has reserved the right to expand the planned community under ORS 94.580, the
transferee shall not acquire the right to annex property unless the transferee
simultaneously acquires from the declarant property
adjacent to the planned community, or unless the conveyance evidences an intent
to transfer such right to the transferee.
(4)
A declarant or a successor declarant
may transfer all or less than all of the transferor’s special declarant rights to a transferee, whether or not any
interest in real property is conveyed, by an instrument executed by the declarant or successor declarant
and the transferee evidencing an intent to transfer all or specific special declarant rights, which instrument shall be recorded in the
office of the recording officer of every county in which the property is
located. If the transfer is not subject to subsection (1) of this section, it
shall also bear the written consent of any holder of a blanket encumbrance on
the planned community.
(5)
An instrument disclaiming or transferring special declarant
rights shall be properly acknowledged as provided by law. [1999 c.677 §35; 2011 c.532 §2]
(Homeowners Association; Management of
Planned Community)
94.625 Formation of homeowners
association; adoption of initial bylaws; amendment of bylaws.
(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
(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.
(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. [1981 c.782 §35; 2001 c.756
§12; 2003 c.569 §10; 2007 c.410
§2; 2009 c.641 §5]
94.626 Corporate dissolution of
association. (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. [2009 c.641 §3]
94.630 Powers of association.
(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:
(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
(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 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. [1981 c.782 §36;
1999 c.677 §13; 2001 c.756 §13;
2003 c.569 §11; 2007 c.410 §2a; 2009 c.641 §6]
94.635 Association bylaws.
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 constitutes a quorum in accordance with ORS
94.655.
(5)(a)
The election of a board of directors 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 (10) 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.
(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. [1981 c.782 §37; 1999 c.677 §14; 2001 c.756 §14; 2009 c.641 §7; 2011 c.532 §16]
94.639 Criteria for board of directors
membership. (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. [2009 c.641 §2]
94.640 Association board of directors;
powers and duties; removal of director; meetings; executive sessions.
(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)
Subject to subsection (7) of this section, 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)(a)
Unless otherwise provided in the declaration or bylaws, at a meeting of the
owners at which a quorum is present, the owners may remove a director from the
board of directors, other than directors appointed by the declarant
or individuals who are ex officio directors, with or without cause, by a
majority vote of owners who are present and entitled to vote.
(b)
Notwithstanding contrary provisions in the declaration or bylaws:
(A)
Before a vote to remove a director, owners must give the director whose removal
has been proposed an opportunity to be heard at the meeting.
(B)
The owners must vote on the removal of each director whose removal is proposed
as a separate question.
(C)
Removal of a director by owners is effective only if the matter of removal was
an item on the agenda and was stated in the notice of the meeting if notice is
required under ORS 94.650.
(c)
A director who is removed by the owners remains a director until a successor is
elected by the owners or the vacancy is filled as provided in subsection (7) of
this section.
(7)
Unless the declaration or bylaws specifically prescribe a different procedure
for filling a vacancy created by the removal of a director by owners, the
owners shall fill a vacancy created by the removal of a director by the owners
at a meeting of owners. The notice of the meeting must state that filling a
vacancy is an item on the agenda.
(8)(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 board may close the
meeting to owners other than board members and meet in executive session to:
(A)
Consult with legal counsel.
(B)
Consider the following:
(i) Personnel matters, including salary negotiations and
employee discipline;
(ii)
Negotiation of contracts with third parties; or
(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.
(9)
The meeting and notice requirements in subsections (8) and (10) of this section
may not be circumvented by chance or social meetings or by any other means.
(10)
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.
(11)
The board of directors, in the name of the association, shall maintain a
current mailing address of the association.
(12)
The board of directors shall cause the information required to enable the
association to comply with ORS 94.670 (8) to be maintained and kept current.
(13)
As used in this section, “meeting” means a convening of a quorum of members of
the board of directors at which association business 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. [1981 c.782 §38; 1983 c.206 §4; 1999 c.677 §15; 2001 c.756 §15; 2003 c.569 §12; 2009 c.641 §8; 2011 c.532 §3]
94.641 Assent of director to board action.
(1) A director of a homeowners association who is present at a meeting of the
board of directors at which action is taken on any association matter is
presumed to have assented to the action unless the director votes against the
action or abstains from voting on the action because the director claims a
conflict of interest.
(2)
When action is taken on any matter at a meeting of the board of directors, the
vote or abstention of each director present must be recorded in the minutes of
the meeting.
(3)
Directors may not vote by proxy or by secret ballot at meetings of the board of
directors.
(4)
Notwithstanding subsection (3) of this section, officers may be elected by
secret ballot. [2007 c.409 §6]
94.642 Receivership for failure of
homeowners association to fill vacancies on board of directors.
(1) Subject to subsection (2) of this section, if a homeowners association
fails to fill vacancies on the board of directors sufficient to constitute a
quorum in accordance with the bylaws, an owner or a first mortgagee may request
the circuit court of the county in which the planned community is located to
appoint a receiver under ORCP 80 to manage the
affairs of the association.
(2)
At least 45 days before an owner or first mortgagee requests the circuit court
to appoint a receiver under subsection (1) of this section, the owner or first
mortgagee shall mail, by certified or registered mail, a notice to the
association and shall post a copy of the notice at a conspicuous place or
places on the property or provide notice by a method otherwise reasonably
calculated to inform owners of the proposed action.
(3)
The notice shall be signed by the owner or first mortgagee and include:
(a)
A description of the intended action.
(b)
A statement that the intended action is pursuant to this section.
(c)
The date, not less than 30 days after mailing of the notice, by which the
association must fill vacancies on the board sufficient to constitute a quorum.
(d)
A statement that if the association fails to fill vacancies on the board by the
specified date, the owner or first mortgagee may file a petition with the court
under subsection (1) of this section.
(e)
A statement that if a receiver is appointed, all expenses of the receivership
will be common expenses of the association as provided in subsection (4) of
this section.
(4)
If a receiver is appointed, the salary of the receiver, court costs, attorney
fees and all other expenses of the receivership shall be common expenses of the
association.
(5)
A receiver appointed under this section has all of the powers and duties of a
duly constituted board of directors and shall serve until a sufficient number
of vacancies on the board are filled to constitute a quorum.
(6)
If at a turnover meeting held in accordance with ORS 94.616 the owners fail to
elect the number of directors sufficient to constitute a quorum of the board of
directors, in addition to the notice requirements specified in subsections (2)
and (3) of this section, an owner shall give the notice to all other owners as
provided in the bylaws.
(7)
Notwithstanding subsections (2) and (3) of this section, in the case of an
emergency, the court may waive the notice requirements of subsections (2) and
(3) of this section. [2007 c.409 §2]
94.645 Adoption of annual budget.
(1) The board of directors at least annually shall adopt a budget for the
planned community.
(2)
The budget shall include moneys to be allocated to the reserve account under
ORS 94.595.
(3)
Within 30 days after adopting the annual budget for the planned community, the
board of directors shall provide a summary of the budget to all owners.
(4)
If the board fails to adopt a budget, the last adopted annual budget shall
continue in effect. [1981 c.782 §39; 1999 c.677 §16; 2007 c.409 §8a]
94.647 Use of written ballot for approving
or rejecting matters subject to meeting of association members; procedures;
exceptions. (1) Unless prohibited or limited by the
declaration or bylaws, any action that may be taken at any annual, regular or
special meeting of the homeowners association may be taken without a meeting if
the association delivers a written ballot to every association member that is
entitled to vote on the matter. Action by written ballot may not substitute for
the following meetings:
(a)
A turnover meeting required under ORS 94.616.
(b)
An annual meeting of an association if more than a majority of the lots are the
principal residences of the occupants.
(c)
A meeting of the association if the agenda includes a proposal to remove a
director from the board of directors.
(d)
A special meeting of the association called at the request of owners under ORS
94.650 (2).
(2)(a)
A written ballot shall set forth each proposed action and provide an
opportunity to vote for or against each proposed action.
(b)
The board of directors must provide owners with at least 10 days’ notice before
written ballots are mailed or otherwise delivered. If, at least three days
before written ballots are scheduled to be mailed or otherwise distributed, at
least 10 percent of the owners petition the board of directors requesting
secrecy procedures, subject to paragraph (d) of this subsection, a written
ballot must be accompanied by:
(A)
A secrecy envelope;
(B)
A return identification envelope to be signed by the owner; and
(C)
Instructions for marking and returning the ballot.
(c)
The notice required under paragraph (b) of this subsection shall state:
(A)
The general subject matter of the vote by written ballot;
(B)
The right of owners to request secrecy procedures specified in paragraph (b) of
this subsection;
(C)
The date after which ballots may be distributed;
(D)
The date and time by which any petition requesting secrecy procedures must be
received by the board; and
(E)
The address where any petition must be delivered.
(d)
The requirements of paragraph (b)(A) and (B) of this subsection do not apply to
a written ballot of an owner if the consent or approval of that owner is
required by the declaration or bylaws or ORS 94.550 to 94.783.
(3)
Matters that may be voted on by written ballot shall be deemed approved or
rejected as follows:
(a)
If approval of a proposed action otherwise would require a meeting at which a
certain quorum must be present and at which a certain percentage of total votes
cast is required to authorize the action, the proposal shall be deemed to be
approved when the date for the return of ballots has passed, a quorum of owners
has voted and the required percentage of approving votes has been received.
Otherwise, the proposal shall be deemed to be rejected; or
(b)
If approval of a proposed action otherwise would require a meeting at which a
specified percentage of owners must authorize the action, the proposal shall be
deemed to be approved when the percentage of total votes cast in favor of the
proposal equals or exceeds the required percentage. The proposal shall be
deemed to be rejected when the number of votes cast in opposition renders
approval impossible or when both the date for return of ballots has passed and
the required percentage has not been met.
(4)
All solicitations for votes by written ballot shall state the following:
(a)
If approval of a proposal by written ballot requires that the total number of
votes cast equal or exceed a certain quorum requirement, the number of responses
needed to meet the quorum requirement;
(b)
If approval of a proposal by written ballot requires that a certain percentage
of total votes cast approve the proposal, the required percentage of total
votes needed for approval; and
(c)
The period during which the association will accept written ballots for
counting in accordance with subsection (5) of this section.
(5)(a)
The association shall accept written ballots for counting during the period
specified in the solicitation under subsection (4) of this section. Except as
provided in paragraph (b) of this subsection, the period shall end on the
earliest of the following dates:
(A)
If approval of a proposed action by written ballot requires that a certain
percentage of the owners approve the proposal, the date on which the
association has received a sufficient number of approving ballots;
(B)
If approval of a proposed action by written ballot requires that a certain
percentage of the owners approve the proposal, the date on which the
association has received a sufficient number of disapproving ballots to render
approval impossible; or
(C)
In all cases, a specified date certain on which all ballots must be returned to
be counted.
(b)
If the vote is by secrecy procedure under subsection (2)(b) of this section,
the period shall end on the date specified in the solicitation or any extension
under paragraph (c) of this subsection.
(c)
Except as otherwise provided in the declaration or bylaws, in the discretion of
the board of directors, if a date certain is specified in the solicitation
under subsection (4) of this section, the period may be extended by written
notice of the extension given to all owners before the end of the specified
date certain.
(6)
Except as otherwise provided in the declaration or bylaws, unless the vote is
by secrecy procedure under subsection (2)(b) of this section, a written ballot
may be revoked before the final return date of the ballots.
(7)
Unless otherwise prohibited by the declaration or bylaws, the votes may be
counted from time to time before the final return date of the ballots to
determine whether the proposal has passed or failed by the votes already cast
on the date the ballots are counted.
(8)
Notwithstanding subsection (7) of this section, written ballots that are returned
in secrecy envelopes may not be examined or counted before the date certain
specified in the solicitation or any extension under subsection (5)(c) of this
section. [1999 c.677 §31; 2001 c.756
§16; 2003 c.569 §13; 2007 c.409
§9]
94.650 Meetings of lot owners; notice.
(1) The homeowners association shall hold at least one meeting of the owners
each calendar year.
(2)(a)
Special meetings of the association may be called by the president of the board
of directors, by a majority of the board of directors or by the president or
secretary upon receipt of a written request of a percentage of owners specified
in the bylaws of the association. However, the bylaws may not require a
percentage greater than 50 percent or less than 10 percent of the votes of the
planned community for the purpose of calling a meeting.
(b)
If the bylaws do not specify a percentage of owners that may request the
calling of a special meeting, a special meeting shall be called if 30 percent
or more of the owners make the request in writing. Notice of the special
meeting shall be given as specified in this section.
(c)
Business transacted at a special meeting shall be confined to the purposes
stated in the notice.
(3)
If the owners request a special meeting under subsection (2) of this section
and the notice is not given within 30 days after the date the written request
is delivered to the president or the secretary, an owner who signed the request
may set the time and place of the meeting and give notice as provided in
subsection (4) of this section.
(4)
Not less than 10 or more than 50 days before any meeting called under this
section, the secretary or other officer specified in the bylaws shall cause the
notice to be hand delivered or mailed to the mailing address of each owner or
to the mailing address designated in writing by the owner, and to all
mortgagees that have requested the notice.
(5)
The notice of a meeting shall state the time and place of the meeting and the
items on the agenda, including the general nature of any proposed amendment to
the declaration or bylaws, any budget changes or any proposal to remove a
director or officer.
(6)
Mortgagees may designate a representative to attend a meeting called under this
section. [1981 c.782 §40; 1999 c.677
§17; 2001 c.756 §17; 2007 c.409
§10]
94.652 Electronic notice to owner or
director. (1) Subject to subsection (2) of this
section and notwithstanding any requirement under the declaration or bylaws or
ORS 94.550 to 94.783, in the discretion of the board of directors of the homeowners
association, any notice, information or other written material required to be
given to an owner or director under the declaration or bylaws or ORS 94.550 to
94.783, may be given by electronic mail, facsimile or other form of electronic
communication.
(2)
Notwithstanding subsection (1) of this section, electronic mail, facsimile or
other form of electronic communication may not be used to give notice of:
(a)
Failure to pay an assessment;
(b)
Foreclosure of an association lien under ORS 94.709; or
(c)
An action the association may take against an owner.
(3)
An owner or director may decline to receive notice by electronic mail,
facsimile or other form of electronic communication and may direct the board of
directors to provide notice in the manner required under the declaration or
bylaws or ORS 94.550 to 94.783. [2007 c.409 §4]
94.655 Quorum for association meetings.
(1) Unless the declaration or bylaws of a homeowners association specify a
greater percentage, a quorum for any meeting of the association consists of the
number of persons who are entitled to cast 20 percent of the votes in a planned
community.
(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 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 number of persons who are entitled to cast 20 percent of the votes in the
planned community.
(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.
(5)
For the purpose of establishing a quorum under this section, an individual who
holds a proxy and an absentee ballot, if absentee ballots are permitted, counts
as a present owner. [1981 c.782 §41; 1999 c.677 §18; 2007 c.409 §11; 2009 c.641 §9; 2011 c.532 §4]
94.657 Rules of order.
(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, 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. [2001 c.756 §4;
2009 c.641 §10]
94.658 Voting or granting consent.
(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, 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. [2001
c.756 §2; 2007 c.409 §12;
2009 c.641 §11]
94.660 Method of voting or consenting.
(1) The vote or consent of a lot may be cast or given:
(a)
In person at a meeting of the homeowners association.
(b)
In the discretion of the board of directors, by absentee ballot in accordance
with subsection (3) of this section.
(c)
Unless the declaration or bylaws or ORS 94.550 to 94.783 provide otherwise,
pursuant to a proxy in accordance with subsection (2) of this section.
(d)
By written ballot in lieu of a meeting under ORS 94.647.
(e)
By any other method specified by the declaration or bylaws or ORS 94.550 to
94.783.
(2)(a)
A proxy:
(A)
Must be dated and signed by the owner;
(B)
Is not valid if it is undated or purports to be revocable without notice; and
(C)
Terminates one year after its date unless the proxy specifies a shorter term.
(b)
The board of directors may not require that a proxy be on a form prescribed by
the board.
(c)
An owner may not revoke a proxy given pursuant to this section except by actual
notice of revocation to the person presiding over a meeting of the association
or to the board of directors if a vote is being conducted by written ballot in
lieu of a meeting pursuant to ORS 94.647.
(d)
A copy of a proxy in compliance with paragraph (a) of this subsection provided
to the association by facsimile, electronic mail or other means of electronic
communication utilized by the board of directors is valid.
(3)(a)
An absentee ballot shall set forth each proposed action and provide an
opportunity to vote for or against each proposed action.
(b)
All solicitations for votes by absentee ballot shall include:
(A)
Instructions for delivery of the completed absentee ballot, including the
delivery location; and
(B)
Instructions about whether the ballot may be canceled if the ballot has been
delivered according to the instructions.
(c)
An absentee ballot shall be counted as an owner present for the purpose of
establishing a quorum.
(d)
Even if an absentee ballot has been delivered to an owner, the owner may vote in
person at a meeting if the owner has:
(A)
Returned the absentee ballot; and
(B)
Canceled the absentee ballot, if cancellation is permitted in the instructions
given under paragraph (b) of this subsection. [1981 c.782
§42; 1999 c.677 §19; 2003 c.569
§14; 2007 c.409 §13]
94.661 Electronic ballot.
(1) As used in this section, “electronic ballot” means a ballot given by:
(a)
Electronic mail;
(b)
Facsimile transmission;
(c)
Posting on a website; or
(d)
Other means of electronic communication acceptable to the board of directors.
(2)
Unless the declaration or bylaws prohibit or provide for other methods of
electronic ballots, the board of directors of a homeowners association, in its
discretion, may provide that a vote, approval or consent of an owner may be
given by electronic ballot.
(3)
An electronic ballot shall comply with the requirements of this section and the
declaration or bylaws or ORS 94.550 to 94.783.
(4)
An electronic ballot may be accompanied by or contained in an electronic notice
in accordance with ORS 94.652.
(5)
If an electronic ballot is posted on a website, a notice of the posting shall
be sent to each owner and shall contain instructions on obtaining access to the
posting on the website.
(6)
A vote made by electronic ballot is effective when it is electronically
transmitted to an address, location or system designated by the board of
directors for that purpose.
(7)
Unless otherwise provided in the declaration or bylaws or rules adopted by the
board of directors, a vote by electronic ballot may not be revoked.
(8)
The board of directors may not elect to use electronic ballots unless there are
procedures to ensure:
(a)
Compliance with ORS 94.647 if the vote conducted by written ballot under ORS
94.647 uses the procedures specified in ORS 94.647 (2)(b); and
(b)
That the electronic ballot is secret, if the declaration or bylaws or rules
adopted by the board require that electronic ballots be secret. [2007 c.409 §5]
94.662 Notice to lot owners of intent of
association to commence judicial or administrative proceeding; contents of
notice; right of lot owner to opt out. (1) At least
10 days prior to instituting any litigation or administrative proceeding to
recover damages under ORS 94.630 (1)(e)(E), the homeowners association shall provide
written notice to each affected owner of the association’s intent to seek
damages on behalf of the owner. The notice shall, at a minimum:
(a)
Be mailed to the mailing address of each lot or to the mailing address
designated in writing to the association by the owner;
(b)
Inform each owner of the general nature of the litigation or proceeding;
(c)
Describe the specific nature of the damages to be sought on the owner’s behalf;
(d)
Set forth the terms under which the association is willing to seek damages on
the owner’s behalf, including any mechanism proposed for the determination and
distribution of any damages recovered;
(e)
Inform each owner of the owner’s right not to have the damages sought on the
owner’s behalf and specify the procedure for exercising the right; and
(f)
Inform the owner that exercising the owner’s right not to have damages sought
on the owner’s behalf:
(A)
Relieves the association of its duty to reimburse or indemnify the owner for
the damages;
(B)
Does not relieve the owner from the owner’s obligation to pay dues or
assessments relating to the litigation or proceeding;
(C)
Does not impair any easement owned or possessed by the association; and
(D)
Does not interfere with the association’s right to make repairs to common areas.
(2)
Within 10 days of mailing the notice described in this section, any owner may
request in writing that the association not seek damages on the owner’s behalf.
If an owner makes such a request, the association shall not make or continue
any claim or action for damages with regard to the objecting owner’s lot and
shall be relieved of any duty to reimburse or indemnify the owner for damages
under the litigation or proceeding. [1999 c.677 §37;
2001 c.756 §18]
94.665 Authority of association to sell,
transfer, convey or encumber common property. (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 the
action.
(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 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. [1981 c.782 §47; 1987 c.447 §112; 1999 c.677 §20; 2009 c.641 §12]
94.667 Recording association information
with county clerk. (1) As used in this section, “association”
means an association formed under ORS 94.625, 94.846 or 100.405, or any other
association in which a person holds membership by virtue of owning or
possessing a real estate interest subject to assessment and lien authority
pursuant to a recorded instrument.
(2)
The board of directors or managing agent of an association may record with the
county clerk for the county where the subject property is located a statement
of association information. Subject to subsection (3) of this section, the
statement shall contain at least the following information:
(a)
The name of the association as identified in the recorded declaration,
conditions, covenants and restrictions or other governing instrument, and the
current name of the association, if different;
(b)
The name, address and daytime telephone number of a managing agent or treasurer
of the association or other person authorized to receive:
(A)
Assessments and fees imposed by the association; or
(B)
Notice of a transfer of property;
(c)
A list of the properties, as described for recordation in ORS 93.600, subject
to assessment by the association;
(d)
Information identifying the recorded declaration, conditions, covenants and
restrictions or other governing instrument, and a reference to where the
instruments are recorded; and
(e)
If an amended statement is being recorded, information identifying prior
recorded statements.
(3)
The statement may not include information for a purpose that is not related to
the identification of the person specified in subsection (2)(b) of this
section.
(4)
The county clerk may charge a fee for recording a statement under this section
according to the provisions of ORS 205.320 (4). [1999 c.447
§1; 2001 c.756 §19]
Note: 94.667
was enacted into law by the Legislative Assembly but was not added to or made a
part of ORS chapter 94 or any series therein by legislative action. See Preface
to Oregon Revised Statutes for further explanation.
94.670 Association duty to keep documents
and records; deposit of assessments; payment of association expenses; review of
financial statement by certified public accountant; examination of records by
owner. (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 one or more separate federally insured 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.
(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 (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.
(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 (4) of this section to be reviewed in the manner
described in subsection (5) of this section within 180 days after the
association receives a petition requesting review signed by at least a majority
of the owners.
(7)
An association subject to the requirements of subsection (5) of this section may
elect, on an annual basis, not to comply with the requirements of subsection
(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.
(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.
(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
(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.
(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 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 (8).
(F)
Documents, correspondence or other matters considered by the board of directors
in executive session held in accordance with ORS 94.640 (8).
(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.
(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 (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.
(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 (10) of this section.
(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. [1981 c.782 §48; 1999 c.677 §21; 2001 c.756 §20; 2003 c.569 §15; 2003 c.803 §20a; 2007 c.340 §1; 2009 c.641 §13; 2011 c.532 §17]
Note:
Section 24, chapter 803, Oregon Laws 2003, provides:
Sec. 24. The
requirements of ORS 94.670 (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 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. [2003 c.803 §24; 2009 c.641 §38]
94.673 When compliance with specified
provisions of ORS 94.640 and 94.670 required. (1)
The homeowners association of a subdivision that received preliminary plat
approval before July 1, 1982, shall comply with the provisions of ORS 94.640
(1), (3), (4) and (8) to (11) and 94.670 if:
(a)
An owner submits a written request to the homeowners association to comply with
the provisions;
(b)
The subdivision otherwise conforms to the description of a planned community
under ORS 94.550; and
(c)
The subdivision is not otherwise exempted under ORS 94.570.
(2)
A homeowners association board of directors is not subject to ORS 94.780 unless
the association fails to comply with subsection (1) of this section after
receiving a written request from an owner. [1983 c.206
§6; 2001 c.756 §59; 2011 c.532
§18]
94.675 Insurance for common property.
(1) The board of directors of a homeowners association shall obtain and
maintain:
(a)
Insurance for all insurable improvements in the common property against loss or
damage by fire or other hazards, including extended coverage, vandalism and
malicious mischief. The insurance shall cover the full replacement costs of any
repair or reconstruction in the event of damage or destruction from any such hazard
if the insurance is available at reasonable cost; and
(b)
A public liability policy covering all common property and all damage or injury
caused by the negligence of the association.
(2)
Premiums for insurance obtained under this section shall be a common expense of
the association.
(3)
A policy may contain a deductible in the amount specified in the declaration or
bylaws. The deductible amount shall be added to the face amount of the policy
in determining whether the insurance equals at least the full replacement cost.
(4)
Notwithstanding a provision in the declaration or bylaws that imposes a maximum
deductible amount in an association insurance policy, if the board of directors
determines that it is in the best interest of the association and owners as
provided in subsection (5) of this section, the board may adopt a resolution
authorizing the association to obtain and maintain an insurance policy with a
deductible amount exceeding the specified maximum, but not in excess of the
greater of:
(a)
The maximum deductible acceptable to the Federal National Mortgage Association;
or
(b)
$10,000.
(5)
In making the determination under subsection (4) of this section, the board of
directors shall consider such factors as the availability and cost of insurance
and the loss experience of the association.
(6)
Not later than 10 days after adoption of a resolution under subsection (4) of
this section, the board of directors shall ensure that a copy of the resolution
and a notice described in ORS 94.676 are:
(a)
Delivered to each owner; or
(b)
Mailed to the mailing address of each owner or to the mailing address
designated in writing by the owner. [1981 c.782 §51;
2007 c.409 §14]
94.676 Insurance deductible for certain
planned communities. (1) If the declaration or bylaws
of a planned community created under ORS 94.550 to 94.783 before September 27,
2007, or a planned community subject to ORS 94.572 do not assign the
responsibility for payment of the amount of the deductible in an association
insurance policy, the board of directors of the homeowners association may
adopt a resolution that assigns the responsibility for payment of the amount of
the deductible. The resolution must include, but need not be limited to:
(a)
The circumstances under which the deductible will be charged against:
(A)
An owner or the owners affected by a loss; or
(B)
All owners;
(b)
The allocation of the deductible charged under paragraph (a) of this
subsection; and
(c)
If an owner and the association have duplicate insurance coverage, the
insurance policy that is primary, unless otherwise provided in the declaration
or bylaws.
(2)
If the board of directors adopts a resolution as described in subsection (1) of
this section, the resolution may require that an owner, in addition to any other
insurance required by the declaration or bylaws, obtain and maintain:
(a)
An insurance policy that insures the owner’s lot for not less than the amount
of the deductible in the association’s insurance policy for which the owner may
be responsible and that insures the owner’s personal property for any loss or
damage; and
(b)
Comprehensive liability insurance that includes, but is not limited to,
coverage for negligent acts of owners and tenants, guests of owners and tenants
and occupants of other lots for damage to the common property, to other lots
and to the personal property of other persons that is located on other lots or
the common property.
(3)
Unless otherwise provided in the declaration or bylaws, the board of directors
may adopt a resolution that:
(a)
Prescribes a procedure for processing insurance claims. The procedure may
require that all claims against the association’s insurance policy be processed
through and coordinated by the board of directors or the managing agent, if
authorized by the board.
(b)
Assigns the responsibility for payment of charges for handling claims,
including any charges by a managing agent.
(4)
Not later than 10 days after adoption of a resolution under subsection (1) or
(3) of this section, the board of directors shall ensure that a copy of the
resolution and a notice described in subsection (5) of this section are:
(a)
Delivered to each lot; or
(b)
Mailed to the mailing address of each owner or to the mailing address
designated in writing by the owner.
(5)
The notice required under subsection (4) of this section shall:
(a)
Advise each owner to contact an insurance agent to determine the effect of the
resolution on the owner’s individual insurance coverage; and
(b)
Be in a form and style reasonably calculated to inform the owner of the
importance of the notice.
(6)
Failure to provide a copy of a resolution or a notice required under this
section does not affect the responsibility of an owner to comply with a
resolution adopted under this section. [2007 c.409 §3]
94.677 Election to have ORS 94.645, 94.655
and 94.675 apply. Unless contrary to the
covenants, conditions or restrictions of a recorded declaration or other
similar instrument, or the bylaws of the association adopted in accordance with
documents governing the association, the homeowners association board of
directors of a subdivision described in ORS 94.673 (1) may elect to be governed
by ORS 94.645, 94.655 and 94.675, without further action by the association. [1983
c.206 §7]
94.680 Blanket all-risk insurance.
(1) If a declaration or bylaws provide that the homeowners association has the
sole authority to decide whether to repair or reconstruct a unit that has
suffered damage or whether a unit must be repaired or reconstructed, the board
of directors shall obtain blanket all-risk insurance for the full replacement
cost of all structures in the planned community. Cost of the coverage shall be
a common expense to the association.
(2)
If the declaration or bylaws contain a provision described in subsection (1) of
this section, the declaration or bylaws also shall provide:
(a)
Requirements of or limitations on repairing or reconstructing damaged or
destroyed property;
(b)
The time within which the repair or reconstruction must begin; and
(c)
The actions the board of directors must take if:
(A)
Damage or destruction is not repaired or replaced; or
(B)
Insurance proceeds exceed or fall short of the costs of repair or
reconstruction. [1981 c.782 §52; 1999 c.677 §22; 2007 c.409 §15]
94.685 Specification of insurance for
individual lots. (1) Unless provided in the
declaration, the bylaws shall specify:
(a)
The insurance an owner must obtain, if any;
(b)
The insurance, if any, an individual owner is precluded from obtaining;
(c)
The responsibility for payment of the amount of the deductible in an
association insurance policy; and
(d)
Whether or not the insurance coverage obtained and maintained by the board of
directors may be brought into contribution with insurance bought by owners or
their mortgagees.
(2)
The declaration or 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. [1981 c.782 §54; 1999 c.677 §23; 2007 c.409 §16]
94.690 Terms of insurance under ORS
94.680. The board of directors of a homeowners
association shall obtain, if reasonably available, terms in insurance policies
under ORS 94.680 which provide a waiver of subrogation by the insurer as to any
claims against the board of directors of the association, any owner or any
guest of an owner. [1981 c.782 §56; 1999 c.677 §24]
94.695 Authority to delegate association
powers to master association. A declaration
for a planned community may delegate any of the powers of the homeowners association
under ORS 94.630 to a master association or provide that the master association
may exercise any such power. [1981 c.782 §62]
94.700 Duration and termination of initial
management agreements and service and employment contracts; exceptions.
(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.
(3)
Any contract or agreement subject to subsection (1) of this section and entered
into after July 1, 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. [1981 c.782 §69;
2009 c.641 §14]
(Assessments and Liens Against Lots;
Easements)
94.704 Assessment and payment of common
expenses. (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 loss or cost incurred by the
homeowners association is the fault of one or more owners, the homeowners association
may assess the loss or cost exclusively against the 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.
(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. [1981 c.782 §43; 1999 c.677 §25; 2001 c.756 §21; 2003 c.569 §16; 2009 c.641 §15]
94.705
[Repealed by 1971 c.478 §1]
94.709 Liens against lots; priority;
duration; record notice of claim of unpaid assessment; foreclosure procedure.
(1) Whenever a homeowners association levies any assessment against a lot, the
association shall have a lien upon the individual lot for any unpaid
assessments. The lien includes interest, late charges, attorney fees, costs or
other amounts imposed under the declaration or bylaws or other recorded
governing document. The lien is prior to a homestead exemption and all other
liens or encumbrances upon the lot except:
(a)
Tax and assessment liens; and
(b)
A first mortgage or trust deed of record.
(2)
Recording of the declaration constitutes record notice and perfection of the
lien for assessments. No further recording of a claim of lien for assessments
or notice of a claim of lien under this section is required to perfect the
association’s lien. The association shall record a notice of claim of lien for
assessments under this section in the deed records of the county in which a lot
is located before any suit to foreclose may proceed under subsection (4) of
this section. The notice shall contain:
(a)
A true statement of the amount due for the unpaid assessments after deducting
all just credits and offsets;
(b)
The name of the owner of the lot, or reputed owner, if known;
(c)
The name of the association;
(d)
The description of the lot as provided in ORS 93.600; and
(e)
A statement that if the owner of the lot thereafter fails to pay any
assessments when due, as long as the original or any subsequent unpaid
assessment remains unpaid, the unpaid amount of assessments automatically
continue to accumulate with interest without the necessity of further
recording.
(3)
The notice shall be verified by the oath of some person having knowledge of the
facts and shall be recorded by the county recording officer. The record shall
be indexed as other liens are required by law to be indexed.
(4)(a)
The proceedings to foreclose liens created by this section shall conform as
nearly as possible to the proceedings to foreclose liens created by ORS 87.010
except, notwithstanding ORS 87.055, a lien may be continued in force for a
period of time not to exceed six years from the date the assessment is due. For
the purpose of determining the date the assessment is due in those cases when
subsequent unpaid assessments have accumulated under a notice recorded as
provided in subsection (2) of this section, the assessment and claim regarding
each unpaid assessment shall be deemed to have been levied at the time the
unpaid assessment became due.
(b)
The lien may be enforced by the board of directors acting on behalf of the
association.
(c)
An action to recover a money judgment for unpaid assessments may be maintained
without foreclosing or waiving the lien securing the claim for unpaid
assessments.
(5)
Unless the declaration or bylaws provide otherwise, fees, late charges, fines
and interest imposed pursuant to ORS 94.630 (1)(L), (n) and (o) are enforceable
as assessments under this section.
(6)
This section does not prohibit an association from pursuing an action to
recover sums for which subsection (1) of this section creates a lien or from
taking a deed in lieu of foreclosure in satisfaction of the lien.
(7)
An action to recover a money judgment for unpaid assessments may be maintained
without foreclosing or waiving the lien for unpaid assessments. However,
recovery on the action operates to satisfy the lien, or the portion thereof,
for which recovery is made. [1981 c.782 §44; 1999 c.677 §26; 2003 c.569 §17]
94.710
[Repealed by 1971 c.478 §1]
94.712 Lot owner personally liable for
assessment; joint liability of grantor and grantee following conveyance;
limitation. (1) An owner shall be personally liable
for all assessments imposed on the owner or assessed against the owner’s lot by
the homeowners association.
(2)(a)
Subject to paragraph (b) of this subsection, in a voluntary conveyance of a
lot, the grantee shall be jointly and severally liable with the grantor for all
unpaid assessments against the grantor of the lot to the time of the grant or
conveyance, without prejudice to the grantee’s right to recover from the
grantor the amounts paid by the grantee therefor.
(b)
Upon request of an owner or owner’s agent, for the benefit of a prospective
purchaser, the board of directors shall make and deliver a written statement of
the unpaid assessments against the prospective grantor or the lot effective
through a date specified in the statement, and the grantee in that case shall
not be liable for any unpaid assessments against the grantor not included in the
written statement.
(3)
An escrow agent or a title insurance company providing escrow services or
issuing title insurance in conjunction with the conveyance:
(a)
May rely on a written statement of unpaid assessments delivered pursuant to
this section; and
(b)
Is not liable for a failure to pay the association at closing any amount in
excess of the amount set forth in the written statement. [1999 c.677 §32; 2003 c.569 §18]
94.715
[Repealed by 1971 c.478 §1]
94.716 Lien against two or more lots; release.
If a lien against two or more lots of the planned community becomes due,
whether the lien is perfected before or after establishment of the planned
community, the owner of an affected lot may pay the lienholder
the portion of the lien attributable to the lot. Upon receipt of payment, the lienholder promptly shall deliver to the owner a release of
the lien as to that lot. The amount of the payment shall be proportionate to
the ratio which that owner’s common expense liability bears to the common
expense liabilities of all owners whose lots are subject to the lien. After
payment, the association may not assess or have a lien against that owner’s lot
for any portion of the common expense liability representing the lien. This
section applies to all liens except a mortgage. [1981 c.782
§45]
94.719 Lien foreclosure; other legal
action by declarant, association or owner; attorney
fees. In any suit or action brought by a
homeowners association to foreclose its lien or to collect delinquent
assessments or in any suit or action brought by the declarant,
the association or any owner or class of owners to enforce compliance with the
terms and provisions of ORS 94.550 to 94.783 or the declaration or bylaws,
including all amendments and supplements thereto or any rules or regulations
adopted by the association, the prevailing party shall be entitled to recover
reasonable attorney fees therein and in any appeal therefrom. [1999 c.677 §33; 2001 c.756 §23; 2007 c.409 §17]
94.720
[Repealed by 1971 c.478 §1]
94.723 Common expenses; liability of first
mortgagee. If a first
mortgagee acquires a lot in a planned community by foreclosure or deed in lieu
of foreclosure, the mortgagee and subsequent purchaser shall not be liable for
any of the common expenses chargeable to the lot which became due before the
mortgagee or purchaser acquired title to the lot. The unpaid expenses shall
become a common expense of all lot owners including the mortgagee or purchaser.
[1981 c.782 §46; 1999 c.677
§27]
94.725
[Repealed by 1971 c.478 §1]
94.728 Taxation of lots and common
property. (1) Each lot in a planned community
constitutes for all purposes a separate parcel of real estate and shall be
separately taxed and assessed.
(2)
No separate tax or assessment may be levied against any common property which a
declarant has reserved no right to develop into
additional lots.
(3)
The declarant alone is liable for payment of taxes or
assessments on any portion of the common property of a planned community in
which the declarant has reserved the right to develop
the property into additional lots, until the right terminates or expires, or is
exercised, abandoned or relinquished.
(4)
If the right described under subsection (3) of this section terminates or
expires or is abandoned or relinquished before July 1 of any year, no tax or
assessment shall be imposed against the portion of the common property so
affected for the next tax year beginning on July 1. [1981 c.782
§34]
94.730
[Repealed by 1971 c.478 §1]
94.733 Easements held by owner of lot and
by declarant; homeowners association access to lots.
(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. [1981 c.782
§33; 2009 c.641 §16]
94.740 [1981 c.782 §74; repealed by 1999 c.677
§72]
94.745 [1981 c.782 §78; repealed by 1999 c.677
§72]
94.750 [1981 c.782 §76; 1983 c.740 §8;
repealed by 1999 c.677 §72]
94.755 [1981 c.782 §82; repealed by 1999 c.677
§72]
(Miscellaneous)
94.760 Promotional material showing
possible improvements. If a declarant
makes no commitment in the declaration to build an improvement or specifically
states in the declaration that the declarant makes no
commitment either to build or not to build the improvement, no person may
display or deliver promotional material to prospective purchasers which
describes or portrays the improvement unless the description or portrayal is
conspicuously labeled “POSSIBLE Improvement.” [1981 c.782
§79]
94.764 Changes or actions that require
approval or consent of mortgagee. (1)
Notwithstanding a contrary provision of a declaration or bylaws of a homeowners
association, when a change to the declaration, bylaws or other governing
document or another action to be taken by the board of directors, association
or owners requires approval or consent of a mortgagee, if the mortgagee
receives a request to approve or consent to the change or action, the mortgagee
is deemed to have approved or consented to the request unless the mortgagee
delivers or posts a negative response to the requesting party within 60 days
after receipt of the request.
(2)
The request must:
(a)
Be in writing.
(b)
Name the mortgagor.
(c)
Identify the property securing the mortgage by legal description as required
for recordation in ORS 93.600 or by address.
(d)
Identify the mortgage by loan number or reference to the county recording
office and date of recording and recording index numbers of the mortgage.
(e)
Be delivered to the mortgagee by certified or registered mail, return receipt
requested. [2011 c.532 §6]
94.765 [1981 c.782 §81; repealed by 1999 c.677
§72]
94.770 Application of rule against
perpetuities; conflict between declaration and bylaws; effect on title of
declaration’s noncompliance with Oregon Planned Community Act; conflict between
Oregon Planned Community Act and ORS chapter 65.
(1) The rule against perpetuities may not be applied to defeat any provision of
the declaration, or any bylaws or rules adopted under ORS 94.630.
(2)
In the event of a conflict between the declaration and the bylaws of a planned
community or between the declaration and the articles of incorporation, the
declaration shall prevail except to the extent the declaration is inconsistent
with ORS 94.550 to 94.783.
(3)
Title to a unit, lot and common property shall not be rendered unmarketable or
otherwise affected by reason of a failure of the declarant
or the declaration to comply with ORS 94.550 to 94.783.
(4)
If the provisions of ORS 94.550 to 94.783 and the provisions of ORS chapter 65
apply to an association and the provisions conflict, the provisions of ORS
94.550 to 94.783 control. [1981 c.782 §86; 1999 c.677 §69; 2003 c.569 §19]
94.775 Judicial partition prohibited.
(1) Unless the declaration expressly allows the division of lots in a planned
community, judicial partition by division of a lot in a planned community is
not allowed under ORS 105.205. The lot may be partitioned by sale and division
of the proceeds under ORS 105.245.
(2)
The restriction specified in subsection (1) of this section does not apply if
the homeowners association has removed the property from the provisions of the
declaration. [1981 c.782 §87; 2003 c.569 §20]
94.777 Compliance with bylaws and other
restrictions required; effect of noncompliance.
Each owner and the declarant shall comply with the
bylaws, and with the administrative rules and regulations adopted pursuant
thereto, and with the covenants, conditions and restrictions in the declaration
or in the deed to the lot. Failure to comply therewith shall be grounds for an
action maintainable by the homeowners association or by an aggrieved owner. [1999
c.677 §36]
94.780 Remedies.
(1) Failure of the declarant, association, any
association member or any other person subject to ORS 94.550 to 94.783 to
comply with applicable sections of ORS 94.550 to 94.785 shall be cause for suit
or action to remedy the violation or to recover actual damages. The prevailing
party is entitled to reasonable attorney fees and court costs.
(2)
Failure of an association to accept administrative responsibility under ORS
94.616 shall be a defense for the declarant against
an action brought under this section.
(3)
A suit or action arising under this section must be commenced within one year
after the discovery or identification of the alleged violation. [1981 c.782 §83; 1999 c.677 §67]
94.783 When certain administrative
provisions apply. If a subdivision received
preliminary plat approval before July 1, 1982, but the subdivision plat or the
plat of the first phase is not filed under ORS 92.120 before January 1, 1984,
the provisions of ORS 94.595, 94.604, 94.609, 94.616, 94.700, 94.760 and 94.780
shall apply to the planned community. [1983 c.206 §8;
1999 c.677 §68]
94.785 Short title.
ORS 94.550 to 94.783 may be cited as the Oregon Planned Community Act. [1981 c.782 §1]
TIMESHARE ESTATES
(General Provisions)
94.803 Definitions for ORS 94.803 and
94.807 to 94.945. As used in this section and ORS
94.807 to 94.945:
(1)
“Agency” means the Real Estate Agency.
(2)
“Accommodation” means an apartment, condominium unit, cabin, house, lodge,
hotel or motel room or other private or commercial structure situated on real
property and designed for residential occupancy.
(3)
“Assessment” means the pro rata share assessed from time to time against each
owner of a timeshare by the managing entity to pay for common expenses.
(4)
“Blanket encumbrance” means a trust deed or mortgage or any other lien or
encumbrance, mechanic’s lien or otherwise, securing or evidencing the payment
of money and affecting more than one timeshare, or an agreement affecting more
than one timeshare by which the developer holds the timeshare property under an
option, leasehold, contract to sell or trust agreement.
(5)
“Commissioner” means the Real Estate Commissioner.
(6)
“Common expenses” means:
(a)
Expenses of administration, maintenance, repair or replacement of the
accommodations and facilities of the timeshare plan;
(b)
Expenses agreed upon as common by all the timeshare owners in the timeshare
plan; and
(c)
Expenses declared common by the timeshare instrument or bylaws of the timeshare
plan.
(7)
“Developer” means a person creating a timeshare plan and a seller of a timeshare
plan.
(8)
“Exchange program” means any opportunity for a purchaser to exchange timeshare
periods among purchasers in the same or other timeshare plans.
(9)
“Facility” means a structure, service, improvement or real property available
for the owner’s use.
(10)
“Fractional interest” means any undivided fractional ownership of real property
which gives each and every fractional owner full rights to unlimited use and
possession of the real property subject only to such limitation as the
fractional owners may agree to among themselves.
(11)
“Managing entity” means the person designated in the timeshare instrument or
selected by the owners’ association board or by the owners to manage all or a
portion of the timeshare plan.
(12)
“Negotiate” means any activity preliminary to the execution of a binding
agreement for the sale of a timeshare, including but not limited to
advertising, solicitation and promotion of the sale of the timeshare.
(13)
“Offering” means any advertisement, inducement, solicitation or attempt to
encourage a person to acquire a timeshare, other than as a security for an
obligation. An advertisement in a newspaper or other periodical of general
circulation, or in any broadcast medium to the general public, of a timeshare
in property located outside this state is not an offering if the advertisement
states that the offering is valid only if made in compliance with the law of
the jurisdiction in which the offer is disseminated.
(14)
“Owner” means a person, other than the developer, to whom a timeshare has been
conveyed other than as security for an obligation.
(15)
“Project” means real property subject to a timeshare instrument. A project may
include accommodations that are not timeshare accommodations.
(16)
“Purchaser” means any person, other than a developer, who by voluntary transfer
acquires an interest in a timeshare other than as security for an obligation.
(17)
“Sale” means a transaction that conveys a timeshare other than as security for
an obligation, including, but not limited to a lease or assignment.
(18)
“Seller” means a person who offers a timeshare for sale to the public. “Seller”
does not include a person who acquired a timeshare for the person’s own use and
later offers it for resale.
(19)
“Timeshare” means a timeshare estate or a timeshare license.
(20)
“Timeshare agreement” means an agreement conferring the rights and obligations
of the timeshare plan on a purchaser including but not limited to a deed, lease
and vacation license.
(21)
“Timeshare estate” means a right to occupy an accommodation during five or more
separated timeshare periods over a period of at least five years, including
renewal options, coupled with a freehold estate or an estate for years in the
timeshare property.
(22)
“Timeshare instrument” means a document creating or regulating timeshares.
(23)
“Timeshare license” means a right to occupy an accommodation during five or
more separated timeshare periods over a period of more than three years,
including renewal options, not coupled with a freehold estate or an estate for
years.
(24)
“Timeshare period” means the period of time when an owner is entitled to
possess and occupy accommodations or facilities of a timeshare plan.
(25)
“Timeshare plan” means an arrangement, whether by membership, agreement,
tenancy in common, sale, lease, deed, rental agreement, license, right to use
agreement or otherwise, in which an owner receives a timeshare estate or a
timeshare license and the right to use accommodations and facilities that are
part of the timeshare property. A timeshare plan does not include an exchange
program.
(26)
“Timeshare property” means one or more accommodations subject to the same
timeshare instrument and any other real estate or rights appurtenant to those
accommodations. [1983 c.530 §2; 1987 c.414 §144b; 1991 c.64 §1]
94.805
[Repealed by 1971 c.478 §1]
94.806 Legislative finding.
The Legislative Assembly finds and declares that there is a need to:
(1)
Protect timeshare purchasers by requiring full and adequate disclosure of all
pertinent facts about the timeshare plan; and
(2)
Provide reasonable regulation of the timeshare industry while encouraging the
growth and development of the industry in Oregon. [1983 c.530
§1]
94.807 Application.
ORS 94.803, 94.806, 94.811 to 94.863 and 94.869 to 94.945 do not apply to:
(1)
Any timeshare plan for which the developer has complied with the requirements
of ORS 92.305 to 92.495 or 100.005 to 100.910 before July 28, 1983.
(2)
Any timeshare plan for which the developer has complied with all applicable
local regulations and has submitted a completed filing under ORS 92.305 to
92.495 or 100.005 to 100.910 before July 28, 1983.
(3)
Any subsequent phase or stage of a timeshare plan described in subsection (1)
or (2) of this section that has complied with the applicable requirements of
ORS chapter 92 and this chapter in effect prior to July 28, 1983. However, the
developer of the phase or stage must comply with the cancellation provisions of
ORS 94.836 and 94.839.
(4)
Subdivided land as defined by ORS 92.305, a planned community as defined by ORS
94.550 and a condominium subject to ORS 100.005 to 100.910 that does not
involve a timeshare plan.
(5)
Subdivided land as defined by ORS 92.305, a planned community as defined by ORS
94.550 and a condominium subject to ORS 100.005 to 100.910, that involves a
timeshare plan to the extent of the nontimeshare
aspects of the development. The developer of such a development must comply
with the applicable requirements of ORS chapter 92 and this chapter in addition
to ORS 94.803, 94.806 and 94.811 to 94.945.
(6)
Any transaction normal and customary in the hotel and motel business involving
the acceptance of advance reservations which are not entered into for the
purpose of evading the provisions of ORS 92.325, 94.570, 94.803 to 94.945,
100.005, 100.105, 100.200, 100.450 and 696.490.
(7)
The offering, sale or transfer of a fractional interest or a timeshare in a
timeshare plan comprised of 12 timeshares or less unless the Real Estate
Commissioner determines that the developer is attempting by a common scheme or
course of development to evade the provisions of ORS 92.325, 94.570, 94.803 to
94.945, 100.005, 100.105, 100.200, 100.450 and 696.490.
(8)
The transfer of a timeshare by reason of a foreclosure action, by deed in lieu
of foreclosure, by gift or by devise, descent or distribution or transfer to an
inter vivos trust that is not made to evade ORS
94.803 and 94.807 to 94.945.
(9)
The offering, sale or transfer of a membership or interest in a recreational
vehicle park or campground that provides no right to use or occupy a
residential dwelling structure in the project overnight.
(10)
The offering, sale or transfer of a membership or interest entitling the
purchaser to a timeshare in personal property, including but not limited to an
airplane, boat or recreational vehicle.
(11)
The offering, sale or transfer of a membership or interest entitling the
purchaser to use real property and facilities without overnight use for
dwelling purposes, including but not limited to commercial office, retail or
similar space and golf, tennis or athletic clubs. [1983 c.530
§3; 1985 c.565 §9; 1991 c.64
§2; 1993 c.744 §245; 1999 c.677
§28]
94.808 Managing entity as taxpayer.
(1) For the purposes of ad valorem taxation, the managing entity responsible
for managing the timeshare plan shall be considered the taxpayer, as agent for
the owners of the timeshare property.
(2)
All of the timeshare property within each timeshare plan shall be listed on the
assessment roll by code area and account number as a single entry stating as
one value the real market value and assessed value of the land and
improvements, except that recreational facilities shall be separately valued
and taxed to the owner thereof, as provided in subsection (1) of this section.
(3)
All rights and privileges afforded property owners by Oregon law as to
appealing assessments shall apply only to the managing entity, as agent for the
owners of the timeshare property.
(4)
The managing entity, as agent of the timeshare owners, shall remit the taxes
assessed on the timeshare property. [1987 c.424 §2;
1991 c.459 §337]
94.809 Valuation of timeshare property;
exclusions from value. (1) The real market value of
timeshare property shall not include any nonreal
property components of timeshares, which nonreal
property components include, without limitation, tangible personal property,
exchange rights, club memberships, vacation convenience services such as
hotel-type services and the management structure of the timeshare plan, and
that portion of the legal, accounting, promotion and marketing costs in
developing and selling the timeshares allocable to the nonreal
property components. The real market value of timeshare property shall not be
based upon the aggregate sales prices of timeshares, if such sales prices
include nonreal property components.
(2)
The real market value of timeshare property, other than the recreational
facilities, shall be determined by taking the value of each individual living
unit as if such living unit were owned by a single taxpayer, without having
been timeshared, and adjusting such value by an amount necessary to reflect any
increase or decrease in such value attributable to the fact that such timeshare
property is marketed in increments of time. There shall be a rebuttable
presumption that the value of such timeshare property is increased by 20
percent of its value under single ownership by virtue of being marketed in
increments of time. If the managing entity or assessor contends that the
adjustment due to such ability to market in increments of time is less than or
greater than an increase of 20 percent of the single ownership value, then the
burden of establishing such adjustment shall be upon the party so contending. [1987
c.424 §3; 1991 c.459 §338]
94.810
[Repealed by 1971 c.478 §1]
94.811 When owners of planned community,
condominium or subdivision may prohibit timeshare plan.
(1) The unit owners in a condominium subject to the Oregon Condominium Act and
the owners in a planned community subject to the Oregon Planned Community Act
may amend the declaration for the condominium or planned community to prohibit
the creation of a timeshare plan involving any portion of the property of the
condominium or planned community. Any amendment to a condominium declaration
must comply with ORS 100.135 and any amendment to a planned community
declaration must comply with ORS 94.590.
(2)
The owners of land in a subdivision may amend the recorded declaration, bylaws
or other governing document for the subdivision to prohibit the creation of a
timeshare plan involving any portion of the property within the subdivision.
The amendment must be approved by not less than 75 percent of the owners or by
any larger percentage specified for the amendment in the recorded declaration,
bylaws or other governing document for the subdivision. As used in this
subsection, “subdivision” means a subdivision as defined by ORS 92.010, that:
(a)
Was approved and for which a plat was recorded under ORS 92.120 before July 28,
1983;
(b)
At the time of the subdivision’s creation, would have met the definition of a
planned community under ORS 94.550; and
(c)
Is not, because of the time of its creation, a planned community subject to the
Oregon Planned Community Act.
(3)
The declaration for a condominium subject to the Oregon Condominium Act and
created after July 28, 1983, and the declaration for a planned community,
subject to the Oregon Planned Community Act and created after July 28, 1983,
may include a provision prohibiting the creation of a timeshare plan involving
any portion of the property of the condominium or planned community. [1983 c.530 §4; 1999 c.677 §29]
(Creation of Timeshare Estates)
94.813 Character of timeshare estates.
(1) Except as expressly modified by ORS 92.325, 92.425, 94.570, 94.803 to
94.945, 100.005, 100.105, 100.200, 100.450 and 696.490, a timeshare estate is
an estate in real property and has the character and incidents of an estate in
fee simple at common law or estate for years if a leasehold. A timeshare
license is an estate for years having the character and incidents of such an
estate at common law.
(2)
A document transferring or encumbering a timeshare may not be rejected for
recordation because of the nature or duration of the interest.
(3)
Neither a timeshare plan nor a timeshare, subject to regulation under ORS
94.803 and 94.807 to 94.945 is a “security,” as defined in ORS 59.015. [1983 c.530 §§4a,5; 1985 c.349 §29; 1987 c.603 §25]
94.815
[Repealed by 1971 c.478 §1]
94.816 Partition prohibited; exception.
(1) Except as otherwise provided in this section, no judicial action for
partition of a timeshare property may be undertaken as long as the property
remains subject to a timeshare plan.
(2)
If any timeshare is owned by two or more persons as tenants in common, as
tenants by the entirety or as tenants with rights of survivorship, nothing in
this section shall prohibit the judicial sale of the timeshare in lieu of
partition as between the cotenants.
(3)
A court of competent jurisdiction, on petition of the developer of a timeshare
plan or the developer’s successor in interest, may grant a waiver of the
prohibition against partition under subsection (1) of this section, if the
court is satisfied that:
(a)
The developer retains at least 50 percent of the timeshares created in the
timeshare plan;
(b)
The timeshare plan has failed and the continuation of the use of timeshare
property by timeshare owners is no longer possible in the manner prescribed by
the timeshare instruments;
(c)
It is in the best interest of timeshare owners to terminate the timeshare plan
and that no reasonable alternative to partition of the timeshare property
exists;
(d)
The petition has not been brought by the developer to avoid the developer’s
responsibilities under the timeshare instrument without good cause; and
(e)
The holder of each blanket encumbrance consents to the proceeding under this
section.
(4)
Except as otherwise provided in subsection (5) of this section, upon a court
declaration of timeshare plan failure under subsection (3) of this section, the
court shall proceed to partition the timeshare property as otherwise provided
by law.
(5)
In the event of a court-ordered sale in connection with partition, proceeds of
the sale shall be applied in the following order:
(a)
Costs described in ORS 105.285 (1) and (2);
(b)
Repayment to owners except the developer of down payments and payments of
principal and interest paid by such owners for their timeshares less the value,
as determined by the court, of the owners’ use of their timeshares;
(c)
Payments to satisfy and discharge the remaining timeshare purchase money
obligations of all owners except the developer. If the developer or an entity
closely related to the developer holds the beneficial interest in any of such
purchase money obligations, funds shall first be applied to discharge the
purchase money obligations held by other holders, and then to the credit of the
developer and its related entity for purchase money obligations held by the
developer or such entity. Funds paid to the developer or the related entity’s
credit shall be held by the court as proceeds available to lienholders
and other claimants in such partition. If there are insufficient funds to fully
discharge purchase money obligations of all owners except the developer, the
balance of unsatisfied purchase money obligations of all owners except the
developer shall be discharged by judgment of the court; and
(d)
As otherwise provided by law. [1983 c.530 §6; 2003 c.576 §356]
94.818 Recording of timeshare instrument;
payments required. (1) To submit property located
within this state to the provisions of ORS 94.803 and 94.807 to 94.945, the
developer shall record a timeshare instrument in the office of the recording
officer of every county in which the timeshare property is located. To submit
property located outside this state to the provisions of ORS 94.803 and 94.807
to 94.945, the developer shall satisfy the requirements of ORS 94.885 for the
recording of a notice of timeshare plan. The timeshare instrument shall comply
with ORS 94.821 and shall be executed in accordance with subsection (2) of this
section and acknowledged in the manner provided for acknowledgment of a deed.
(2)
If the developer is not the fee owner of the property, the fee owner and the
vendor under any contract of sale and the lessor
under any lease shall also execute the timeshare instrument for the purpose of
consenting to the property being submitted to the provisions of ORS 94.803 and
94.807 to 94.945.
(3)
No timeshare instrument shall be recorded unless all taxes, penalties, special
assessments, fees and charges that would be required to be paid for
subdivisions or partitions under ORS 92.095 have been paid in the same manner
as provided in ORS 92.095. [1983 c.530 §7; 1993 c.19 §2]
94.820
[Repealed by 1971 c.478 §1]
94.821 Content of timeshare instrument.
A timeshare instrument shall include:
(1)
A legal description of the timeshare property;
(2)
The name or other identification of the project;
(3)
Identification of timeshare periods by letter, name, number or a combination of
letters, names and numbers and a description of the timeshare;
(4)
Identification of the accommodations;
(5)
The method for determining the owner’s liability for common expenses and real
property taxes;
(6)
The method for notice and appeal of property tax values;
(7)
If additional accommodations may become part of the timeshare property or
existing accommodations may be deleted from the timeshare property, the method
for adding them to or deleting them from the property and the formula for
allocation and reallocation of the liabilities for common expenses and of
voting rights;
(8)
Any restrictions on the use, occupancy or alteration of a timeshare
accommodation and any specified procedure or method for amending existing rules
or adopting additional rules and regulations;
(9)
Any restriction on the alienation of a timeshare;
(10)
The ownership interest of the owner in personal property and provisions for
care and replacement of personal property;
(11)
If the instrument creates timeshare licenses, the period the accommodations
affected are committed to timeshare licenses and provisions for disposition of
those accommodations at the end of the period, if the period is not infinite;
(12)
Any requirement for or restriction on amending the timeshare instrument;
(13)
The nature and duration of the owner’s rights in the timeshare plan, the
circumstances under which the timeshare plan could be terminated and the
procedure for terminating the timeshare plan;
(14)
A description of the form of conveyance or other instrument used by the
developer to transfer a timeshare to a purchaser;
(15)
The identity of any person that has the power to grant an easement in the
timeshare property or otherwise affect the title to the timeshare property;
(16)
How and by whom the timeshare plan will be managed, including but not limited
to provisions for selecting a replacement or successor managing entity and
provisions for continuity of management throughout the duration of the
timeshare plan;
(17)
A description of the voting rights of a timeshare owner and the developer and
other participation rights, if any, of a timeshare owner and the method for
determining and allocating the voting rights; and
(18)
Provisions for notifying a timeshare owner of any authorized change in the
owner’s voting or participation rights. [1983 c.530 §8;
1987 c.424 §4]
94.823 Notice of intent to sell timeshares;
form and content; rules. A developer shall submit a
notice to the Real Estate Commissioner informing the commissioner of the
developer’s intent to sell timeshares in Oregon. The form and content of the
notice shall be established by rule by the commissioner, but shall include at
least:
(1)
The name and business and residence addresses of:
(a)
The developer;
(b)
The developer’s agent;
(c)
The designated managing entity; and
(d)
Any person selling the timeshare plan within Oregon.
(2)
An explanation of the timeshare form of ownership to be offered under the
timeshare plan.
(3)
A general description of the timeshare plan, including the number of timeshares
to be offered under the timeshare plan and the number and description of the
accommodations and facilities.
(4)
A complete description, including a copy of all necessary implementing
documents, of the methods to be used by the developer to comply with the
requirements of ORS 92.325, 92.425, 94.570, 94.803 to 94.945, 100.005, 100.105,
100.200, 100.450 and 696.490.
(5)
A title report for the real property underlying the timeshare plan, acceptable
to the commissioner and including a statement of any lien, defect, judgment or
other encumbrance affecting title to the property.
(6)
A copy of any judgment against the developer or managing entity, the status of
any pending suit that is material to the timeshare plan to which the developer
or managing entity is a party and the status of any other suit that is material
to the timeshare plan of which the developer has actual knowledge.
(7)
A description of any insurance coverage provided for the benefit of a purchaser
or a statement that no insurance coverage is provided.
(8)
The name and address of the accommodations and facilities and the schedule for
completing any improvements not complete at the time of filing.
(9)
The financial obligation of a purchaser, excluding the initial purchase price
and including:
(a)
Additional charges and common expenses to which the purchaser may be subject,
whether or not in the form of an assessment; and
(b)
An estimated operating budget and schedule of estimated common expenses.
(10)
A copy of the timeshare instrument or notice of timeshare plan as required
under ORS 94.818.
(11)
A copy of any contract, lease or timeshare agreement to be signed by the
purchaser.
(12)
A copy of the rules, limitations or conditions on the use of accommodations or
facilities available to purchasers.
(13)
Any restriction on the transfer of any timeshare.
(14)
If any portion of the timeshare property is located outside the state, proof
that the developer has recorded the notice of timeshare plan as required under
ORS 94.833 (1).
(15)
Any other information the commissioner may determine is necessary. [1983 c.530 §19; 2003 c.14 §37]
94.825
[Repealed by 1971 c.478 §1]
94.826 Information on exchange program;
content; rules. (1) A seller offering an
exchange program to a purchaser in conjunction with a timeshare plan shall
provide written information to the purchaser about the exchange program.
(2)
The exchange program information to be provided to the purchaser shall be established
by rule by the Real Estate Commissioner and shall include at least:
(a)
The name and address of the exchange company;
(b)
Whether or not the purchaser’s participation in the exchange program is
dependent upon the timeshare plan’s continued affiliation with the exchange
program;
(c)
Whether or not the purchaser’s participation in the exchange program is
voluntary;
(d)
A complete and accurate description of the terms and conditions of the
purchaser’s contractual relationship with the exchange program, and the
procedure for modifying the exchange program contract;
(e)
The procedure to qualify for and effectuate an exchange;
(f)
A description of any limitation, restriction or priority system employed in the
operation of the exchange program;
(g)
The circumstances under which a purchaser may lose the use and occupancy of the
purchaser’s accommodation in any properly applied for exchange through the
exchange program;
(h)
Any fee for participation in the exchange program; and
(i) Any other information material to the exchange program
which, by omission, tends to make the information otherwise disclosed
misleading.
(3)
The exchange program information shall be in addition to the information found
in the public report required under ORS 94.828 (1), (2) and (4) and must be
provided to the purchaser before a contract may be executed between the
purchaser and the company offering the exchange program.
(4)
An exchange company offering an exchange program to purchasers in Oregon shall
file the information required in subsection (2) of this section annually with
the commissioner.
(5)
Only a timeshare owner and a developer other than a seller may participate in
an exchange program. [1983 c.530 §21]
94.828 Public report on plan.
(1) After the Real Estate Commissioner receives a completed notice under ORS
94.823 the commissioner shall prepare a public report on the timeshare plan. In
lieu of preparing a report, the commissioner may accept a report prepared by
the developer and issue the report with any changes the commissioner considers
necessary.
(2)
Whether or not the commissioner issues a public report on a timeshare plan the
developer shall report to the commissioner any material change in the timeshare
plan or in the marketing program for the timeshare plan within 10 days after
the change occurs.
(3)
The commissioner may examine a timeshare plan subject to ORS 94.803 and 94.807
to 94.945 to be offered for sale and make a public report of the findings. If a
timeshare plan is located within this state and no report is made within 45
days after the commissioner receives a completed timeshare filing, the report
shall be considered waived.
(4)
As used in this section, “material change” includes, but is not limited to:
(a)
The addition or deletion of a timeshare accommodation or facility.
(b)
A change in the method of marketing or conveyancing
the timeshare plan.
(c)
A change in the purchase money handling procedure previously approved by the
commissioner, including but not limited to:
(A)
A change in the escrow depository; or
(B)
A change in or creation of an encumbrance affecting more than one timeshare.
(d)
A change in the developer or, if the developer is an entity, a change in the
name, form of organization or status of the developer.
(e)
A revision of the timeshare plan’s annual budget that will require a regular
annual assessment against the owners that is more than 25 percent greater than
the regular annual assessment indicated in the current public report for the
timeshare plan.
(f)
Any legal or physical condition rendering a timeshare accommodation or facility
unusable by an owner. [1983 c.530 §§20,39]
94.829 Sale not allowed before issuance of
public report; distribution and uses of report.
(1) No developer or agent of the developer shall sell a timeshare in a
timeshare plan before the issuance of a public report for the timeshare plan,
unless the public report has been waived under ORS 94.828 (3).
(2)
A copy of the public report, when issued, shall be given to the prospective
purchaser of a timeshare by the developer or agent of the developer prior to
the execution of a binding contract or agreement for the sale of the timeshare.
The developer or the developer’s agent shall take a receipt from the
prospective purchaser upon delivery of a copy of the Real Estate Commissioner’s
public report. Each such receipt shall be kept on file by the developer within
this state subject to inspection by the commissioner or the commissioner’s
authorized representative for a period of three years from the date the receipt
is taken.
(3)
The commissioner’s public report shall not be used for advertising purposes
unless the report is used in its entirety. No portion of the public report
shall be underscored, italicized or printed in larger or heavier type than the
balance of the public report unless the true copy of the report emphasizes the
portion.
(4)
The commissioner may furnish, at cost, copies of a public report for the use of
a developer.
(5)
The requirements of this section extend to timeshares sold by the developer
after repossession.
(6)
Remedies and sanctions available for violation of ORS 646.605 to 646.656 are
available for violation of this section, in addition to any other remedies or
sanctions provided by law. [1985 c.76 §2]
94.830
[Repealed by 1971 c.478 §1]
94.831 Filing fees; inspection advance
payment; disposition of moneys. (1) The
notice required under ORS 94.823 shall be accompanied by a filing fee as
follows:
(a)
For a timeshare plan developed in a single phase, $500 plus $10 for each
timeshare but in no case shall the fee exceed $3,000.
(b)
For a timeshare plan developed in two or more phases, $500 plus $10 for each
timeshare in the first phase, and $5 for each additional timeshare developed in
a subsequent phase of the same development, but in no case shall the fee exceed
$3,000 for each phase.
(2)
For a material change notice submitted under ORS 94.828 (1), (2) and (4), the
Real Estate Commissioner may charge a fee not to exceed $100 for each page of
the public report that must be revised, but in no case shall the fee for a
material change exceed $500.
(3)
When an examination is to be made of timeshare property located in the State of
Oregon, or timeshare property located outside Oregon that will be offered for
sale to persons within Oregon, the commissioner, in addition to the filing fee
provided in subsections (1) and (2) of this section, may require the developer
to advance payment of an amount estimated by the commissioner to be the expense
incurred in going to and returning from the timeshare property, and an amount
estimated to be necessary to cover the additional expense of the examination
not to exceed $200 a day for each day consumed in the examination of the
timeshare property. The amounts estimated by the commissioner under this
subsection shall be based upon any applicable limits established and regulated
by the Oregon Department of Administrative Services under ORS 292.220.
(4)
The moneys received under subsections (1) to (3) of this section shall be paid
into the State Treasury and placed in the General Fund to the credit of the
Real Estate Account established under ORS 696.490. [1983 c.530
§§22,23,24]
94.833 Sale of timeshare plan located
out-of-state. (1) Before negotiating within this
state for the sale of a timeshare in a timeshare plan composed wholly or
partially of timeshare property located outside this state, the developer of
the timeshare plan must:
(a)
Comply with ORS 94.803 and 94.807 to 94.945; and
(b)
Record, in the real property records of each county or other appropriate
jurisdiction of each state in which the timeshare property is located for use
of a timeshare owner, the notice of timeshare plan, as defined in ORS 94.885
for the timeshare plan. This recording requirement does not apply to timeshare property
located in foreign countries.
(2)
Before the sale of a timeshare in a timeshare plan composed wholly of timeshare
property located within this state, the developer of the timeshare plan must
comply with the applicable provisions of ORS 94.803 and 94.807 to 94.945. [1983
c.530 §18]
94.835
[Repealed by 1971 c.478 §1]
(Purchaser’s Rights)
94.836 Cancellation of purchase within
five days. (1) A purchaser from a developer may
cancel, for any reason, any contract, agreement or other evidence of indebtedness
associated with the sale of the timeshare within five calendar days from the
date the purchaser signs the first written offer or contract to purchase.
(2)
Cancellation, under subsection (1) of this section, occurs when the purchaser
gives written notice to the developer at the developer’s address. The
cancellation period in subsection (1) of this section does not begin until the
developer provides the purchaser with developer’s address for cancellation
purposes.
(3)
A notice of cancellation given by a purchaser need not take a particular form
and is sufficient if it indicates in writing the purchaser’s intent not to be
bound by the contract or evidence of indebtedness.
(4)
Notice of cancellation, if given by mail, shall be given by certified mail,
return receipt requested, and is effective on the date that the notice is
deposited with the United States Postal Service, properly addressed and postage
prepaid.
(5) Upon receipt of a timely notice of cancellation, the developer shall immediately return any payment received from the purchaser. If the payment was made by check, the developer shall not be required to return the payment to the purchaser until the check is finally paid as provided in