Oregon Chapter 94
Chapter 94 — Real Property DevelopmentDownload Full 2005 Oregon Revised Statutes (coming soon!)
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Chapter 94 — Real
Property Development
2007 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
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
94.630 Powers
of association
94.635 Association
bylaws
94.640 Association
board of directors; powers and duties; removal of member; 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 or transfer common property
94.667 Recording
association information with county clerk
94.670 Association
duty to keep documents and records; 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
(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
(Miscellaneous)
94.760 Promotional
material showing possible improvements
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
94.831 Filing
fees; inspection advance payment; disposition of moneys
94.833
(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.
94.540 [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 92.190 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
(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)
(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
(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, 94.630 (1), (3) and (4), 94.640,
94.641, 94.642, 94.645, 94.647, 94.650, 94.652, 94.655, 94.657, 94.658, 94.660,
94.661, 94.662, 94.665, 94.670, 94.675, 94.676, 94.680, 94.690, 94.695, 94.704,
94.709, 94.712, 94.716, 94.719, 94.723, 94.728, 94.733, 94.770, 94.775, 94.777
and 94.780 to the extent that those statutes are consistent with any governing
documents. If the governing documents do not provide for the formation of an
association, the requirements of this subsection are not effective until the
formation of an association in accordance with paragraph (b) of this
subsection. If a provision of the governing documents is inconsistent with this
subsection, the owners may amend the governing documents using the procedures
in this subsection:
(A) In accordance with the procedures for
the adoption of amendments in the governing documents and subject to any
limitations in the governing documents, the owners may amend the inconsistent
provisions of the governing documents to conform to the extent feasible with
this section and ORS 94.550, 94.590, 94.595 (5) to (9), 94.625, 94.630 (1), (3)
and (4), 94.640, 94.641, 94.642, 94.645, 94.647, 94.650, 94.652, 94.655,
94.657, 94.658, 94.660, 94.661, 94.662, 94.665, 94.670, 94.675, 94.676, 94.680,
94.690, 94.695, 94.704, 94.709, 94.712, 94.716, 94.719, 94.723, 94.728, 94.733,
94.770, 94.775, 94.777 and 94.780. 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, 94.630 (1), (3) and (4), 94.640, 94.641, 94.642,
94.645, 94.647, 94.650, 94.652, 94.655, 94.657, 94.658, 94.660, 94.661, 94.662,
94.665, 94.670, 94.675, 94.676, 94.680, 94.690, 94.695, 94.704, 94.709, 94.712,
94.716, 94.719, 94.723, 94.728, 94.733, 94.770, 94.775, 94.777 and 94.780 by a
vote of at least 75 percent of the owners in the planned community.
(ii) For an amendment to the bylaws, the
owners may amend the inconsistent provisions of the bylaws to conform to this
section and ORS 94.550, 94.590, 94.595 (5) to (9), 94.625, 94.630 (1), (3) and
(4), 94.640, 94.641, 94.642, 94.645, 94.647, 94.650, 94.652, 94.655, 94.657,
94.658, 94.660, 94.661, 94.662, 94.665, 94.670, 94.675, 94.676, 94.680, 94.690,
94.695, 94.704, 94.709, 94.712, 94.716, 94.719, 94.723, 94.728, 94.733, 94.770,
94.775, 94.777 and 94.780 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]
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 92.190.
(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 and may:
(A) Adjust the amount of payments as
indicated by the study or update; and
(B) Provide for other reserve items that
the board of directors, in its discretion, may deem appropriate.
(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) Nothing in this section prohibits
prudent investment of reserve account funds subject to any constraints imposed
by the declaration, bylaws or rules of the association.
(8) In addition to the authority of the
board of directors under subsection (3)(a) of this section, following the
second year after the association has assumed administrative responsibility for
the planned community under ORS 94.616:
(a) By an affirmative vote of at least 75
percent of the owners of the planned community, the association may elect to
reduce or increase future assessments for the reserve account; and
(b) The association may, on an annual
basis by a unanimous vote, elect not to fund the reserve account.
(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]
(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
(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 which relate to the subject lot.
(c) A transferor who retains no special
declarant right has no obligation or liability for any act or omission or any
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 shall not be 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 which pertain to such successor declarant’s ownership of
the lot or lots and the exercise of any special declarant right. [1999 c.677 §34]
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 lot or lots, 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 a lot or lots 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 lot or lots which are
entitled to be annexed to the lot or lots, 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 lot.
(5) An instrument disclaiming or transferring
special declarant rights shall be properly acknowledged as provided by law. [1999
c.677 §35]
(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.
(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]
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;
(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]
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 shall
constitute a quorum.
(5)(a) The election of a board of
directors from among the unit owners and the number of persons constituting the
board;
(b) The powers and duties of the board;
(c) Any compensation of the directors; and
(d) The method of removing directors from
office in accordance with ORS 94.640 (6).
(6) The terms of office of directors.
(7) The method of calling meetings of the
board of directors in accordance with ORS 94.640 (8) and a statement that all
meetings of the board of directors shall be open to owners.
(8) The offices of president, secretary
and treasurer and any other offices of the association, and the method of selecting
and removing officers and filling vacancies in the offices.
(9) The preparation and adoption of a
budget in accordance with ORS 94.645.
(10)(a) The program for maintenance,
upkeep, repair and replacement of the common property;
(b) The method of payment for the expense
of the program and other expenses of the planned community; and
(c) The method of approving payment
vouchers.
(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]
94.640
Association board of directors; powers and duties; removal of member; 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) Unless otherwise provided in the
bylaws, the board of directors may fill vacancies in its membership for the
unexpired portion of any term.
(3) At least annually, the board of
directors of an association shall review the insurance coverage of the
association.
(4) The board of directors of the
association annually shall cause to be filed the necessary income tax returns
for the association.
(5) The board of directors of the
association may record a statement of association information as provided in
ORS 94.667.
(6) Unless otherwise provided in the
declaration or bylaws:
(a) The owners may remove any member of
the board of directors, other than members appointed by the declarant or
persons who are ex officio directors, with or without cause, by a majority vote
of all owners present and entitled to vote at any meeting of the owners at
which a quorum is present.
(b) Removal of a director is not effective
unless the matter of removal is an item on the agenda and stated in the notice
for the meeting required under ORS 94.650.
(7)(a) All meetings of the board of
directors of the association shall be open to owners, except that at the discretion
of the board the following matters may be considered in executive session:
(A) Consultation with legal counsel
concerning the rights and duties of the association regarding existing or
potential litigation, or criminal matters;
(B) Personnel matters, including salary
negotiations and employee discipline;
(C) Negotiation of contracts with third
parties; and
(D) Collection of unpaid assessments.
(b) Except in the case of an emergency,
the board of directors of an association shall vote in an open meeting whether
to meet in executive session. If the board of directors votes to meet in
executive session, the presiding officer of the board of directors shall state
the general nature of the action to be considered and, as precisely as
possible, when and under what circumstances the deliberations can be disclosed
to owners. The statement, motion or decision to meet in executive session must
be included in the minutes of the meeting.
(c) A contract or an action considered in
executive session does not become effective unless the board of directors,
following the executive session, reconvenes in open meeting and votes on the
contract or an action, which must be reasonably identified in the open meeting
and included in the minutes.
(d) The meeting and notice requirements in
this section may not be circumvented by chance or social meetings or by any
other means.
(8) In a planned community in which the
majority of the lots are the principal residences of the occupants, meetings of
the board of directors must comply with the following:
(a) For other than emergency meetings,
notice of board of directors’ meetings shall be posted at a place or places on
the property at least three days prior to the meeting or notice shall be
provided by a method otherwise reasonably calculated to inform lot owners of
such meetings;
(b) Emergency meetings may be held without
notice, if the reason for the emergency is stated in the minutes of the
meeting; and
(c) Only emergency meetings of the board
of directors may be conducted by telephonic communication or by the use of a
means of communication that allows all members of the board of directors
participating to hear each other simultaneously or otherwise to be able to
communicate during the meeting. A member of the board of directors
participating in a meeting by this means is deemed to be present in person at
the meeting.
(9) The board of directors, in the name of
the association, shall maintain a current mailing address of the association.
(10) The board of directors shall cause
the information required to enable the association to comply with ORS 94.670
(7) to be maintained and kept current.
(11) As used in this section, “meeting”
means a convening of a quorum of members of the board of directors where
matters relating to association business are 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]
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
provide otherwise, a quorum for any meeting of the association consists of the
number of persons who are entitled to cast 20 percent of the votes and who are
present in person, by proxy or by absentee ballot, if absentee ballots are
permitted by the board of directors, at the beginning of the meeting.
(2) If any meeting of the association
cannot be organized because of a lack of a quorum, the owners who are present,
either in person or by proxy, may adjourn the meeting. The quorum for a
subsequent meeting is the greater of:
(a) One-half of the quorum required in the
declaration or bylaws; or
(b) The quorum required in subsection (1)
of this section. [1981 c.782 §41; 1999 c.677 §18; 2007 c.409 §11]
94.657
Rules of order. Unless other
rules of order are required by the declaration or bylaws or by a resolution of
the association or its board of directors:
(1) Meetings of the association and the
board of directors shall be conducted according to the latest edition of Robert’s
Rules of Order published by the Robert’s Rules Association.
(2) A decision of the association or the
board of directors may not be challenged because the appropriate rules of order
were not used unless a person entitled to be heard was denied the right to be
heard and raised an objection at the meeting in which the right to be heard was
denied.
(3) A decision of the association and the
board of directors is deemed valid without regard to procedural errors related
to the rules of order one year after the decision is made unless the error
appears on the face of a written instrument memorializing the decision. [2001
c.756 §4]
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 executor, administrator, guardian
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 executor, administrator, guardian or trustee
holding the lot.
(b) When a lot is owned by two or more
persons jointly, according to the records of the association:
(A) Except as provided in this paragraph,
the vote 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]
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 or transfer common property. (1) Except as otherwise provided in the
declaration, a homeowners association may sell, convey or subject to a security
interest any portion of the common property if 80 percent or more of the votes
in the homeowners association, including 80 percent of the votes of lots not
owned by a declarant at the time of the vote, are cast in favor of that action.
The association shall treat proceeds of any sale under this section as an asset
of the association.
(2) A sale, transfer or encumbrance 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. 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. [1981 c.782 §47; 1987 c.447 §112; 1999 c.677 §20]
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; 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.
(2) All assessments, including declarant
subsidies, shall be deposited in the name of the association in a separate
federally insured account at a financial institution, as defined in ORS
706.008, other than an extranational institution. 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. Within 90 days
after the end of the fiscal year, the board of directors shall:
(a) Prepare or cause to be prepared an
annual financial statement consisting of a balance sheet and income and
expenses statement for the preceding fiscal year; and
(b) Distribute to each owner and, upon
written request, any mortgagee of a lot, a copy of the annual financial
statement.
(4) Subject to section 24, chapter 803,
Oregon Laws 2003, the association of a planned community that has annual
assessments exceeding $75,000 shall cause the financial statement required
under subsection (3) of this section to be reviewed within 180 days after the
end of the fiscal year by an independent certified public accountant licensed
in the State of Oregon in accordance with the Statements on Standards for
Accounting and Review Services issued by the American Institute of Certified
Public Accountants.
(5) The association of a planned community
created on or after January 1, 2004, or the association of a planned community
described in ORS 94.572 that has annual assessments of $75,000 or less shall
cause the most recent financial statement required by subsection (3) of this
section to be reviewed in the manner described in subsection (4) of this
section within 180 days after the association receives a petition requesting
review signed by at least a majority of the owners.
(6) An association subject to the
requirements of subsection (4) of this section may elect, on an annual basis,
not to comply with the requirements of subsection (4) of this section by an
affirmative vote of at least 60 percent of the owners, not including the votes
of the declarant with respect to lots owned by the declarant.
(7)(a) The association shall provide,
within 10 business days of receipt of a written request from an owner, a
written statement that provides:
(A) The amount of assessments due from the
owner and unpaid at the time the request was received, including:
(i) Regular and special assessments;
(ii) Fines and other charges;
(iii) Accrued interest; and
(iv) Late payment charges.
(B) The percentage rate at which interest
accrues on assessments that are not paid when due.
(C) The percentage rate used to calculate
the charges for late payment or the amount of a fixed charge for late payment.
(b) The association is not required to
comply with paragraph (a) of this subsection if the association has commenced
litigation by filing a complaint against the owner and the litigation is
pending when the statement would otherwise be due.
(8) The association shall make the
documents, information and records described in subsections (1) and (3) of this
section and all other records of the association reasonably available for
examination and, upon written request, available for duplication by an owner
and any mortgagee of a lot that makes the request in good faith for a proper
purpose, except that 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 paragraphs (a) and (b) of this subsection.
(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 (7).
(f) Documents, correspondence or other
matters considered by the board of directors in executive session held in
accordance with ORS 94.640 (7).
(g) Files of individual owners, other than
those of a requesting owner or requesting mortgagee of an individual owner,
including any individual owner’s file kept by or on behalf of the association.
(9) The association shall maintain a copy,
suitable for the purpose of duplication, of the following:
(a) The declaration and bylaws, including
amendments or supplements in effect, the recorded plat, if feasible, and the
association rules and regulations currently in effect.
(b) The most recent financial statement
prepared pursuant to subsection (3) of this section.
(c) The current operating budget of the
association.
(d) The reserve study, if any, described
in ORS 94.595.
(e) Architectural standards and
guidelines, if any.
(10) The association, within 10 business
days after receipt of a written request by an owner, shall furnish the
requested information required to be maintained under subsection (9) of this
section.
(11) 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]
Note: Section 24, chapter 803, Oregon Laws 2003,
provides:
Sec.
24. The requirements of ORS
94.670 (4) 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]
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), (7), (8) and (9) and
94.670 if:
(a) An owner submits a written request to
the homeowners association to comply with the provisions;
(b) The subdivision otherwise conforms to
the description of a planned community under ORS 94.550; and
(c) The subdivision is not otherwise
exempted under ORS 94.570.
(2) A homeowners association board of
directors is not subject to ORS 94.780 unless the association fails to comply
with subsection (1) of this section after receiving a written request from an
owner. [1983 c.206 §6; 2001 c.756 §59]
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. (1) 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) 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]
(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 common expense is the fault of any owner, the homeowners association
may assess the expense exclusively against the lot of the owner.
(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]
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]