US Laws, Codes, Statutes & Cases

Chapter 100 — Condominiums

 

2007 EDITION

 

CONDOMINIUMS

 

PROPERTY RIGHTS AND TRANSACTIONS

 

GENERAL PROVISIONS

 

100.005     Definitions

 

100.010     Short title

 

100.015     Rules

 

100.020     Condominium provisions; restrictions

 

100.025     Rule against perpetuities; inapplicable

 

CREATION OF UNIT OWNERSHIP

 

100.100     Property submitted to unit ownership by declaration; executors of declaration; conflict between this chapter and ORS chapter 65

 

100.102     Leasehold condominium submitted to unit ownership

 

100.103     Effect of submission of leasehold condominium to unit ownership

 

100.105     Contents of declaration; property name; variable property description

 

100.110     Approval of declaration, supplemental declaration or amendment required; prerequisites; fee

 

100.115     Recording declaration and plat; plat contents; supplemental declaration and plat; approval of declaration and plat amendments; fees

 

100.120     Supplemental declaration and plat required to annex additional property or reclassify variable property; termination date

 

100.122     Declaration prevails over inconsistent provisions of bylaws or articles of incorporation

 

100.123     Authority to amend declaration or bylaws to comply with federal or state law

 

100.125     Annexation of additional property; requirements

 

100.130     Relocation of unit boundaries and common elements by amendment to declaration

 

100.135     Amendments to declaration; requirements; procedure

 

100.140     Temporary relocation of floating structure; security interests upon termination of condominium

 

FLEXIBLE CONDOMINIUMS

 

100.150     Declarant’s options until termination date

 

100.155     Variable property; uses and restrictions

 

RIGHTS AND DUTIES OF DECLARANT

 

100.170     Easement held by declarant

 

100.175     Reserve account for maintaining, repairing and replacing common elements; reserve study; maintenance plan

 

WARRANTIES ON NEW UNITS

 

100.185     Express warranties; form; exclusion of implied warranties; exemption for consumer products; claims

 

DECLARANT CONTROL; TURNOVER

 

100.200     Declarant control of association

 

100.205     Transitional committee; notice of meeting for formation

 

100.210     Turnover meeting; notice; transfer of control

 

SPECIAL DECLARANT RIGHTS

 

100.220     Liabilities and obligations arising from transfer of special declarant right; exemptions

 

100.225     Acquisition of special declarant rights by successor declarant; exceptions

 

DOCUMENT FILING

 

100.250     Documents required to be filed with Real Estate Agency; fees

 

100.255     Processing of documents filed with Real Estate Agency; procedures

 

100.260     Condominium Information and Annual Reports; contents; fees

 

100.265     Annual Report; notification; filing

 

100.275     Application of ORS 100.250 to 100.280

 

100.280     Termination of filing Condominium Information Report

 

100.285     Resignation of designated agent; procedures; effective date

 

100.290     Rules

 

CONVERSION CONDOMINIUMS

 

100.300     Inapplicability of ORS 100.301 to 100.320 to transient lodgings

 

100.301     Definitions for ORS 100.301 to 100.320

 

100.305     Conversion condominium; notice

 

100.310     Rights of tenants in conversion

 

100.315     Improvements in conversion condominium during notice period

 

100.320     Authority of city or county to require developer to pay tenant moving expenses

 

ASSOCIATION OF UNIT OWNERS; MANAGEMENT OF PROPERTY; ENCUMBRANCES; CONVEYANCES

 

100.405     Association of unit owners; powers; granting of interest in common elements; dispute resolution

 

100.407     Annual and special meetings of association

 

100.408     Quorum for meeting of association

 

100.409     Rules of order

 

100.410     Adoption of bylaws; recording; amendment; approval by commissioner; fee

 

100.412     Annual budget; distribution of budget summary to owners

 

100.415     Contents of bylaws

 

100.417     Board of directors of association; powers and duties

 

100.418     Receivership for failure of association to fill vacancies on board of directors

 

100.419     Assent of director to board action

 

100.420     Board meetings; executive sessions

 

100.423     Electronic notice to owner or director

 

100.425     Use of written ballot for approving or rejecting matters subject to meeting of unit owners; procedures; exceptions

 

100.427     Methods of voting

 

100.428     Electronic ballot

 

100.430     Unit deeds; contents

 

100.435     Insurance for individual units and common elements

 

100.440     Liens against property; removal from lien; effect of part payment

 

100.445     Independent default clauses; option to purchase fee simple interest

 

100.450     Association lien against individual unit; recording notice of claim; foreclosure; priority of lien

 

100.460     Foreclosure against unit; receiver for unit; power of board of directors to bid at foreclosure sale

 

100.465     Circumstances in which deed in lieu of foreclosure extinguishes lien

 

100.470     Lien foreclosure; other legal action by declarant, association or owner; attorney fees

 

100.475     Personal liability for assessment; joint liability of grantor and grantee following conveyance; limitation

 

100.480     Maintaining documents and records; annual financial statement; review of financial statement by certified public accountant; availability of documents and records for examination

 

100.485     Duration and termination of initial management agreements and service and employment contracts; applicability of federal condominium law

 

100.490     Notice to unit owners of intent of association to commence judicial or administrative proceedings; contents of notice; right of unit owner to opt out

 

ATTRIBUTES AND DUTIES OF OWNERSHIP

 

100.505     Status and ownership of units

 

100.510     Units and common elements distinguished

 

100.515     Interest of units in common elements

 

100.520     Easement held by units and common elements

 

100.525     Voting or consenting

 

100.530     Allocation of common profits and expenses; liability of unit owner; limitation on assessments against declarant; deferral of assessments by declarant

 

100.535     Maintenance and improvement of units

 

100.540     Use and maintenance of common elements; access for maintenance

 

100.545     Compliance with bylaws and other restrictions

 

100.550     Service of process

 

100.555     Taxation of units; exemptions; uniform appraisal and assessment; rules

 

REMOVAL OF PROPERTY FROM UNIT OWNERSHIP

 

100.600     Termination of association or removal of real property by unit owners; consent of lienholders; recordation; amended plat requirements

 

100.605     Removal of property from association; repair or removal of property that is damaged or destroyed

 

100.610     Common ownership of property removed from unit ownership; valuation; liens

 

100.615     Action for partition; division of sale proceeds

 

100.620     Termination or removal no bar to resubmission

 

DIVIDING OR CONVERTING UNITS

 

100.625     Procedure for dividing or converting units

 

REGULATION OF SALES; FILING REQUIREMENTS

 

100.635     Filing with commissioner; fee

 

100.640     Filing; required documents and information

 

100.645     Filing information to be kept current

 

100.650     Service of process on nonresident developer; consent for service on commissioner; contents of consent; records of service on commissioner

 

100.655     Disclosure statement; contents; disclosure statement from other state; declarant liability limited

 

100.660     Nonresidential condominium or security filing; contents

 

100.665     Exemption to certain disclosure and notice requirements

 

100.670     Fees; hourly rate; deposit

 

100.675     Inventory; review; approval; timelines

 

100.680     Escrow; sales agreement; requirements

 

INSPECTION OF CONDOMINIUM; DISCLOSURE STATEMENT

 

100.700     Inspection of condominium; report in disclosure statement

 

100.705     Sale prohibited prior to issuance of disclosure statement; exception; distribution; use of disclosure statement

 

100.710     Inspection deposit

 

REQUIREMENTS FOR SALE

 

100.720     Conditions prerequisite to sale

 

100.725     Documents prerequisite to execution of sale agreement and conveyance of unit

 

100.730     Cancellation of sale of unit; notice to seller; return of payments and reconveyance; extinguishment of encumbrances; waiver prohibited; disclaimer of notice; applicability

 

100.735     Waiver of right to cancel

 

100.740     Notice to purchaser of cancellation rights; form

 

100.745     Escrow documents required of successor to vendor’s interest

 

100.750     Inspection of records

 

PROHIBITED ACTS

 

100.770     Fraud and deceit prohibited

 

100.775     False or misleading advertising prohibited; liability

 

100.780     Waiver of legal rights void

 

100.785     Blanket encumbrance prohibited

 

ENFORCEMENT

 

100.900     Civil penalty

 

100.905     Cease and desist order; injunction

 

100.910     Use of fees

 

CRIMINAL PENALTIES

 

100.990     Criminal penalties

 

GENERAL PROVISIONS

 

      100.005 Definitions. As used in this chapter, unless the context requires otherwise:

      (1) “Assessment” means any charge imposed or levied by the association of unit owners on or against a unit owner or unit pursuant to provisions of the declaration or the bylaws of the condominium or provisions of ORS 100.005 to 100.910.

      (2) “Association of unit owners” means the association provided for under ORS 100.405.

      (3) “Association property” means any real property or interest in real property acquired, held or possessed by the association under ORS 100.405.

      (4) “Blanket encumbrance” means a trust deed or mortgage or any other lien or encumbrance, mechanic’s lien or otherwise, securing or evidencing the payment of money and affecting more than one unit in a condominium, or an agreement affecting more than one such unit by which the developer holds such condominium under an option, contract to sell or trust agreement.

      (5) “Building” means a multiple-unit building or single-unit buildings, or any combination thereof, comprising a part of the property. “Building” also includes a floating structure described in ORS 100.020 (3)(b)(D).

      (6) “Commissioner” means the Real Estate Commissioner.

      (7) “Common elements” means the general common elements and the limited common elements.

      (8) “Common expenses” means:

      (a) Expenses of administration, maintenance, repair or replacement of the common elements;

      (b) Expenses agreed upon as common by all the unit owners; and

      (c) Expenses declared common by ORS 100.005 to 100.625 or by the declaration or the bylaws of the particular condominium.

      (9) “Condominium” means:

      (a) With respect to property located within this state:

      (A) The land, if any, whether fee simple, leasehold, easement or other interest or combination thereof, and whether contiguous or noncontiguous;

      (B) Any buildings, improvements and structures on the property; and

      (C) Any easements, rights and appurtenances belonging to the property submitted to the provisions of ORS 100.005 to 100.625; and

      (b) With respect to property located outside this state, the property that has been committed to the condominium form of ownership in accordance with the jurisdiction within which the property is located.

      (10) “Conversion condominium” means a condominium in which there is a building, improvement or structure that was occupied prior to any negotiation and that is:

      (a) Residential in nature, at least in part; and

      (b) Not wholly commercial or industrial, or commercial and industrial, in nature.

      (11) “Declarant” means a person who records a declaration under ORS 100.100 or a supplemental declaration under ORS 100.110.

      (12) “Declaration” means the instrument described in ORS 100.100 by which the condominium is created and as modified by any amendment recorded in accordance with ORS 100.135 or supplemental declaration recorded in accordance with ORS 100.120.

      (13) “Developer” means a declarant or any person who purchases an interest in a condominium from declarant, successor declarant or subsequent developer for the primary purpose of resale.

      (14) “Flexible condominium” means a condominium containing property that may be reclassified or withdrawn from the condominium pursuant to ORS 100.150 (1).

      (15) “General common elements,” unless otherwise provided in a declaration, means all portions of the condominium that are not part of a unit or a limited common element, including but not limited to the following:

      (a) The land, whether fee simple, leasehold, easement, other interest or combination thereof, together with any rights and appurtenances;

      (b) The foundations, columns, girders, beams, supports, bearing and shear walls, windows, except glazing and screening, unit access doors, except glazing and screening, roofs, halls, corridors, lobbies, stairs, fire escapes, entrances and exits of a building;

      (c) The basements, yards, gardens, parking areas and outside storage spaces;

      (d) Installations of central services such as power, light, gas, hot and cold water, heating, refrigeration, air conditioning, waste disposal and incinerating;

      (e) The elevators, tanks, pumps, motors, fans, compressors, ducts and in general all apparatus and installations existing for common use;

      (f) The premises for the lodging of janitors or caretakers of the property; and

      (g) All other elements of a building and the condominium necessary or convenient to their existence, maintenance and safety, or normally in common use.

      (16) “Leasehold” means the interest of a person, firm or corporation who is the lessee under a lease from the owner in fee and who files a declaration creating a condominium under ORS 100.100.

      (17) “Limited common elements” means those common elements designated in the declaration, as reserved for the use of a certain unit or number of units, to the exclusion of the other units.

      (18) “Majority” or “majority of unit owners” means more than 50 percent of the voting rights allocated to the units by the declaration.

      (19) “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.

      (20) “Negotiation” means any activity preliminary to the execution by either developer or purchaser of a unit sales agreement, including but not limited to advertising, solicitation and promotion of the sale of a unit.

      (21) “Nonwithdrawable property” means property which pursuant to ORS 100.150 (1)(b):

      (a) Is designated nonwithdrawable in the declaration and on the plat; and

      (b) Which may not be withdrawn from the condominium without the consent of all of the unit owners.

      (22) “Percent of owners” or “percentage of owners” means the percent of the voting rights determined under ORS 100.525.

      (23) “Purchaser” means an actual or prospective purchaser of a condominium unit pursuant to a sale.

      (24) “Recording officer” means the county officer charged with the duty of filing and recording deeds and mortgages or any other instruments or documents affecting the title to real property.

      (25) “Reservation agreement” means an agreement relating to the future sale of a unit which is not binding on the purchaser and which grants purchaser the right to cancel the agreement without penalty and obtain a refund of any funds deposited at any time until purchaser executes a unit sales agreement.

      (26) “Sale” includes every disposition or transfer of a condominium unit, or an interest or estate therein, by a developer, including the offering of the property as a prize or gift when a monetary charge or consideration for whatever purpose is required by the developer. “Interest or estate” includes a lessee’s interest in a unit for more than three years or less than three years if the interest may be renewed under the terms of the lease for a total period of more than three years. “Interest or estate” does not include any interest held for security purposes or a timeshare regulated or otherwise exempt under ORS 94.803 and 94.807 to 94.945.

      (27) “Special declarant right” means any right, in addition to the regular rights of the declarant as a unit owner, reserved for the benefit of or created by the declarant under the declaration, bylaws or the provisions of this chapter.

      (28) “Staged condominium” means a condominium which provides for annexation of additional property pursuant to ORS 100.115 and 100.120.

      (29) “Successor declarant” means the transferee of any special declarant right.

      (30) “Termination date” means that date described in ORS 100.105 (2)(b) or (7)(d).

      (31) “Transitional committee” means the committee provided for under ORS 100.205.

      (32) “Turnover meeting” means the meeting provided for under ORS 100.210.

      (33) “Unit” or “condominium unit” means a part of the property which:

      (a) Is described in ORS 100.020 (3);

      (b) Is intended for any type of independent ownership; and

      (c) The boundaries of which are described pursuant to ORS 100.105 (1)(d).

      (34) “Unit designation” means the number, letter or combination thereof designating a unit in the declaration and on the plat.

      (35) “Unit owner” means, except to the extent the declaration or bylaws provide otherwise, the person owning fee simple interest in a unit, the holder of a vendee’s interest in a unit under a recorded installment contract of sale and, in the case of a leasehold condominium, the holder of the leasehold estate in a unit.

      (36) “Unit sales agreement” means a written offer or agreement for the sale of a condominium unit which when fully executed will be binding on all parties. “Unit sales agreement” includes but is not limited to an earnest money receipt and agreement to purchase and other such agreements which serve as an agreement of sale for a cash transaction or which are preliminary to the execution of an installment contract of sale, but does not include a reservation agreement.

      (37) “Variable property” means property described in ORS 100.150 (2) and designated as variable property in the declaration and on the plat.

      (38) “Voting rights” means the portion of the votes allocated to a unit by the declaration in accordance with ORS 100.105 (1)(j). [Formerly 94.004; 1997 c.816 §1; 1999 c.677 §38; 2001 c.756 §24; 2007 c.410 §5]

 

      100.010 Short title. This chapter may be cited as the Oregon Condominium Act. [Formerly 94.011]

 

      100.015 Rules. The Real Estate Commissioner may adopt such rules as are necessary for the administration of this chapter. [Formerly 94.333]

 

      Note: 100.015 was added to and made a part of 100.635 to 100.910 by legislative action but was not added to any other series. See Preface to Oregon Revised Statutes for further explanation.

 

      100.020 Condominium provisions; restrictions. (1) Except as otherwise provided in subsections (2) and (3) of this section, ORS 100.100 to 100.625 apply only to property located within this state which a person elects to submit to the condominium form of ownership as provided in ORS 100.005 to 100.625.

      (2) Unless the declarant elects otherwise, ORS 100.175, 100.185, 100.200 (2), 100.205, 100.210, 100.300, 100.305, 100.310, 100.315 and 100.320 apply only to condominiums that include units to be used for residential purposes.

      (3) Property may not be submitted to the condominium form of ownership under ORS 100.005 to 100.625 unless:

      (a) Each unit has legal access to a public street or highway or, if the unit has such access only by virtue of common ownership with other units, the declaration executed under ORS 100.110 prohibits conveyance of the unit unless after conveyance the unit will continue to have legal access to a public street or highway;

      (b) Subject to paragraph (c) of this subsection, each unit consists of:

      (A) A building or part of a building;

      (B) A space used for the parking or storage of automobiles, trucks, boats, campers or other vehicles or equipment;

      (C) A space for the moorage of a watercraft, floating home or other structure; or

      (D) A floating structure, including a structure formerly used as a ship or other vessel that:

      (i) Is permanently moored to structures in a river, lake or other waterway pursuant to a long-term lease with a remaining term at the time the declaration and plat are recorded of not less than 15 years;

      (ii) Contains two or more residential units with a combined floor space of not less than 2,000 square feet; and

      (iii) Has upland common elements owned in fee or by leasehold having a remaining term of not less than the remaining term of the leasehold on the submerged or submersible land. The units in a condominium described in this subparagraph shall be considered real property for purposes of the Oregon Condominium Act; and

      (c) Each unit has an interest in the common elements in accordance with ORS 100.515. However, a unit may not include any portion of the land. A declaration may not provide that there are no common elements.

      (4)(a) Except as otherwise provided in subsection (5) of this section, ORS 100.015 and 100.635 to 100.910 apply to condominiums having units to be used for residential purposes which are not offered for sale as a security pursuant to ORS 59.005 to 59.451.

      (b) ORS 100.635 (2), 100.640 (8) to (12), 100.655, 100.705, 100.720, 100.725, 100.730, 100.735, 100.740 and 100.745 do not apply to the sale of units to be used for nonresidential purposes unless the units, including units used for parking or storage, are ancillary to the sale of units to be used for residential purposes.

      (5) ORS 100.650, 100.660, 100.670, 100.675, 100.750, 100.770, 100.775, 100.780, 100.900, 100.905 and 100.990 apply to a condominium located in this state that consists exclusively of units to be used for nonresidential purposes or that consists of units to be offered for sale as a security under ORS 59.005 to 59.451.

      (6) The units in a condominium described in subsection (3)(b)(C) and (D) of this section shall be considered real property for purposes of this chapter.

      (7) Unless the declaration or bylaws provide otherwise, a condominium unit may be submitted to the condominium form of ownership under ORS 100.005 to 100.625. [Formerly 94.013; 1997 c.816 §2; 1999 c.677 §39; 2001 c.756 §25; 2007 c.410 §6]

 

      100.025 Rule against perpetuities; inapplicable. The rule against perpetuities may not be applied to defeat any provisions of a declaration, supplemental declaration, bylaw or rule for a condominium adopted under ORS 100.005 to 100.625. [Formerly 94.016]

 

CREATION OF UNIT OWNERSHIP

 

      100.100 Property submitted to unit ownership by declaration; executors of declaration; conflict between this chapter and ORS chapter 65. (1) In order to submit any property to the provisions of this chapter, the declarant shall record a declaration in the office of the recording officer of every county in which such property is located. The declaration shall comply with ORS 100.105 and shall be executed in accordance with subsection (2) of this section and acknowledged in the manner provided for acknowledgment of deeds.

      (2) If the declarant is not the fee owner of the property, the fee owner and the vendor under any instrument of sale shall also execute the declaration for the purpose of consenting to the property being submitted to the provisions of this chapter.

      (3) If the condominium contains any variable property, the holder of any mortgage or trust deed shall also execute the declaration for the purpose of consenting to the property being submitted to the provisions of ORS 100.005 to 100.625 and the terms and conditions of the declaration and bylaws.

      (4) A flexible or staged condominium may be created only as provided in ORS 100.005 to 100.625.

      (5) The provisions of and rights conferred by ORS 100.005 to 100.910 shall not be varied or waived except as expressly provided in those statutes. A declarant shall not act under a power of attorney or use any other device to evade the limitations or prohibitions in the declaration, bylaws or ORS 100.005 to 100.910.

      (6) If the provisions of this chapter and the provisions of ORS chapter 65 apply to an association and the provisions conflict, the provisions of this chapter control. [Formerly 94.023; 2003 c.569 §22]

 

      100.102 Leasehold condominium submitted to unit ownership. (1) The owner of fee title interest in the real property underlying a leasehold condominium may submit the fee title to the provisions of this chapter by the procedures set forth in this section. Submission has the effect set forth in ORS 100.103.

      (2) The fee title interest of a leasehold condominium may be submitted to the provisions of this chapter by an amendment to the declaration. The amendment must:

      (a) Include a reference to the recording index numbers and date of recording of the initial declaration, supplemental declarations recorded pursuant to ORS 100.120 and the lease;

      (b) State that the fee title interest in the real property subject to the leasehold is submitted to the provisions of this chapter pursuant to this section;

      (c) State that the submission of the fee title interest in the real property subject to the leasehold to the provisions of this chapter has the effect set forth in ORS 100.103;

      (d) State that there are no encumbrances against the fee title interest securing payment of moneys except for the assessments of the owners association that are not yet due;

      (e) Be approved by at least 75 percent of the unit owners, notwithstanding that the declaration may require approval by a larger percentage of owners or the consent of another person to amend the declaration;

      (f) Be executed by the fee title holder and the chairperson and secretary of the association and acknowledged in the manner provided for acknowledgment of instruments;

      (g) Be certified by the chairperson and secretary as being adopted in accordance with this section;

      (h) Be approved as required by ORS 100.110; and

      (i) Be recorded in the office of the recording officer of each county in which the condominium is located.

      (3) At the time of submission, the fee title interest being submitted may not be subject to an encumbrance securing payment of money except for the assessments of an association that are not yet due.

      (4) Nothing in this section precludes the declarant of a leasehold condominium, the unit owners and the association from agreeing to other procedures for submitting the fee title interest to the provisions of this chapter, provided the procedures are set forth in:

      (a) The declaration; or

      (b) An amendment to the declaration approved by at least 75 percent of the unit owners or, if a larger percentage is specified in the declaration to effect amendments to the declaration, the larger percentage, and 75 percent of the lenders holding a first-priority security position in any unit in the condominium. [2003 c.569 §43; 2007 c.410 §7]

 

      Note: 100.102 and 100.103 were added to and made a part of ORS chapter 100 by legislative action but were not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation.

 

      100.103 Effect of submission of leasehold condominium to unit ownership. (1) After an amendment submitting the fee title interest underlying a leasehold condominium has been recorded as provided in ORS 100.102:

      (a) The leasehold or leaseholds affecting the fee title interest of the land underlying the condominium property must be converted to individual leaseholds of the units;

      (b) The former owner of the underlying fee title interest of the condominium property shall become the holder of the fee title interest to all individual units and the lessor of the individual units. The individual unit owners of the leasehold condominium units shall become lessees of the fee title condominium units;

      (c) Unless otherwise provided by the lease or agreed by the lessor and lessee of the fee title condominium units, the obligations to pay rent under the former lease must be allocated among all former leasehold units on the basis of the percentage ownership in the common elements of the condominium allocated to each unit;

      (d) Liens against leasehold condominium units become liens on the lessee’s interest in the leased unit and have the same priority and rights against the leasehold of the individual unit in the fee title condominium formerly held against the leasehold condominium unit;

      (e) The holder of the fee title to the unit in the fee condominium shall have the same priority and rights in the individual leasehold of the fee title condominium unit as was held under the leases prior to submission of the fee title interest; and

      (f) The fee title interest is not subject to the liens suffered or incurred by the unit lessee, except for property taxes and condominium association assessment liens.

      (2) The assessor shall assign all value of the fee simple interest to the fee title condominium units and allocate any additional value in accordance with the allocation of interest of each unit in the common elements.

      (3) All easements, covenants, conditions and restrictions or other interests encumbering the fee title and the leasehold at the time of submission of the fee title to the provisions of this chapter continue and remain in full force, unaffected by the submission.

      (4)(a) Options to purchase that were granted to unit owners or to the association prior to submission of the fee title interest to the provisions of this chapter pursuant to ORS 100.102 continue according to their terms, except that purchaser options must be segregated so that each option pertains to an individual unit only.

      (b) Unless the purchase options provide otherwise, the purchase price must be allocated among the individual units on the basis of the percentage ownership interest in the common elements pertaining to individual units.

      (c) Except for segregating the former leasehold into individual leaseholds in each of the units and reallocating lease payments among the units as provided in this section, the terms and provisions of the former lease are unaffected by submission of the fee title to the provisions of this chapter.

      (d) Except for segregating the purchase options and allocating the purchase price, if not otherwise allocated by the terms of the purchase option, the terms and provisions of the purchase option are unaffected by submission of the fee title to the provisions of this chapter. [2003 c.569 §44]

 

      Note: See note under 100.102.

 

      100.105 Contents of declaration; property name; variable property description. (1) A declaration shall contain:

      (a) A description of the property, including property on which a unit or a limited common element is located, whether held in fee simple, leasehold, easement or other interest or combination thereof, that is being submitted to the condominium form of ownership and that conforms to the description in the surveyor’s certificate provided under ORS 100.115 (2).

      (b) Subject to subsection (11) of this section, a statement of the interest in the property being submitted to the condominium form of ownership, whether fee simple, leasehold, easement or other interest or combination thereof.

      (c) Subject to subsection (5) of this section, the name by which the property shall be known and a general description of each unit and the building or buildings, including the number of stories and basements of each building, the total number of units and the principal materials of which they are constructed.

      (d) The unit designation, a statement that the location of each unit is shown on the plat, a description of the boundaries and area in square feet of each unit and any other data necessary for proper identification. The area of a unit shall be the same as shown for that unit on the plat described in ORS 100.115 (2).

      (e) A notice in substantially the following form in at least 12-point type that is either all capitals or boldface:

______________________________________________________________________________

 

NOTICE

 

      THE SQUARE FOOTAGE AREAS STATED IN THIS DECLARATION AND THE PLAT ARE BASED ON THE BOUNDARIES OF THE UNITS AS DESCRIBED IN THIS DECLARATION AND MAY VARY FROM THE AREA OF UNITS CALCULATED FOR OTHER PURPOSES.

______________________________________________________________________________

 

      (f) A description of the general common elements.

      (g) An allocation to each unit of an undivided interest in the common elements in accordance with ORS 100.515 and the method used to establish the allocation.

      (h) The designation of any limited common elements including:

      (A) A general statement of the nature of the limited common element;

      (B) A statement of the unit to which the use of each limited common element is reserved, provided the statement is not a reference to an assignment of use specified on the plat; and

      (C) The allocation of use of any limited common element appertaining to more than one unit.

      (i) The method of determining liability for common expenses and right to common profits in accordance with ORS 100.530.

      (j) The voting rights allocated to each unit in accordance with ORS 100.525 or in the case of condominium units committed as property in a timeshare plan defined in ORS 94.803, the voting rights allocated in the timeshare instrument.

      (k) A statement of the use, residential or otherwise, for which the building or buildings and each of the units is intended.

      (L) A statement that the designated agent to receive service of process in cases provided in ORS 100.550 (1) is named in the Condominium Information Report which will be filed with the Real Estate Agency in accordance with ORS 100.250 (1)(a).

      (m) The method of amending the declaration and the percentage of voting rights required to approve an amendment of the declaration in accordance with ORS 100.135.

      (n) A statement as to whether or not the association of unit owners pursuant to ORS 100.405 (5) and (8) has authority to grant leases, easements, rights of way, licenses and other similar interests affecting the general and limited common elements of the condominium and consent to vacation of roadways within and adjacent to the condominium.

      (o) If the condominium contains a floating structure described in ORS 100.020 (3), a statement regarding the authority of the board of directors of the association, subject to ORS 100.410, to temporarily relocate the floating structure without a majority vote of affected unit owners.

      (p) Any restrictions on alienation of units. Any such restrictions created by documents other than the declaration may be incorporated by reference in the declaration to the official records of the county in which the property is located.

      (q) Any other details regarding the property that the person executing the declaration considers desirable. However, if a provision required to be in the bylaws under ORS 100.415 is included in the declaration, the voting requirements for amending the bylaws shall also govern the amendment of the provision in the declaration.

      (2) In the event the declarant proposes to annex additional property to the condominium under ORS 100.125, the declaration shall also contain a general description of the plan of development, including:

      (a) The maximum number of units to be included in the condominium.

      (b) The date after which any right to annex additional property will terminate.

      (c) A general description of the nature and proposed use of any additional common elements which declarant proposes to annex to the condominium, if such common elements might substantially increase the proportionate amount of the common expenses payable by existing unit owners.

      (d) A statement that the method used to establish the allocation of undivided interest in the common elements, the method used to determine liability for common expenses and right to common profits and the method used to allocate voting rights for each unit annexed shall be as stated in the declaration in accordance with subsection (1)(g), (i) and (j) of this section.

      (e) Such other information as the Real Estate Commissioner shall require in order to carry out the purposes of ORS 100.015, 100.635 to 100.730 and 100.740 to 100.910.

      (3) Except where expressly prohibited by the declaration and subject to the requirements of ORS 100.135 (2) and subsections (9) and (10) of this section:

      (a) Not later than two years following the termination dates specified in subsections (2)(b) and (7)(d) of this section, such termination dates may be extended for a period not exceeding two years; and

      (b) The general description under subsection (2)(c) of this section and the information included in the declaration in accordance with subsection (7)(c), (g) and (h) of this section may be changed by an amendment to the declaration.

      (4) The information included in the declaration in accordance with subsection (2)(a) and (d) of this section and subsection (7)(a), (b), (e), (f) and (k) of this section may not be changed unless all owners agree to the change and record an amendment to the declaration in accordance with this chapter.

      (5) The name of the property shall include the word “condominium” or “condominiums” or the words “a condominium.”

      (6) A condominium may not bear a name which is the same as or deceptively similar to the name of any other condominium located in the same county.

      (7) If the condominium is a flexible condominium containing variable property, the declaration shall also contain a general description of the plan of development, including:

      (a) A statement that the rights provided for under ORS 100.150 (1) are being reserved.

      (b) A statement:

      (A) Of any limitations on rights reserved under ORS 100.150 (1), including whether the consent of any unit owner shall be required, and if so, a statement of the method by which the consent shall be ascertained; or

      (B) That there are no limitations on rights reserved under ORS 100.150 (1).

      (c) A statement of the total number of tracts of variable property within the condominium, including:

      (A) A designation of each tract as withdrawable or nonwithdrawable variable property;

      (B) Identification of each variable tract by a label in accordance with ORS 100.115 (2)(i);

      (C) A statement of the method of labeling each tract depicted on the plat in accordance with ORS 100.115 (2)(i); and

      (D) A statement of the total number of tracts of each type of variable property.

      (d) The termination date, which is the date or time period after which any right reserved under ORS 100.150 (1) will terminate, and a statement of the circumstances, if any, that will terminate any right on or before the date or time period specified. The date or time period may not exceed seven years from the recording of the conveyance of the first unit in the condominium to a person other than the declarant. Recording shall be in the county in which the property is located.

      (e) The maximum number of units that may be created.

      (f) A statement that the method used to establish the allocations of undivided interest in the common elements, the method used to determine liability for common expenses and right to common profits and the method used to allocate voting rights as additional units are created shall be the same as stated in the declaration in accordance with subsection (1)(g), (i) and (j) of this section.

      (g) A general description of all existing improvements and the nature and proposed use of any improvements that may be made on variable property if the improvements might substantially increase the proportionate amount of the common expenses payable by existing unit owners.

      (h) A statement of whether or not the declarant reserves the right to create limited common elements within any variable property, and if so, a general description of the types that may be created.

      (i) A statement that the plat shows the location and dimensions of all withdrawable variable property that is labeled “WITHDRAWABLE VARIABLE PROPERTY.”

      (j) A statement that if by the termination date all or a portion of the withdrawable variable property has not been withdrawn or reclassified, the withdrawable property shall automatically be withdrawn from the condominium as of the termination date.

      (k) A statement of the rights of the association under ORS 100.155 (2).

      (L) A statement of whether or not all or any portion of the variable property may not be withdrawn from the condominium and, if so, with respect to the nonwithdrawable variable property:

      (A) A statement that the plat shows the location and dimensions of all nonwithdrawable property that is labeled “NONWITHDRAWABLE VARIABLE PROPERTY.”

      (B) A description of all improvements that may be made and a statement of the intended use of each improvement.

      (C) A statement that, if by the termination date all or a portion of the variable property designated as “nonwithdrawable variable property” has not been reclassified, the property shall automatically be reclassified as of the termination date as a general common element of the condominium and any interest in such property held for security purposes shall be automatically extinguished by such classification.

      (D) A statement of the rights of the association under ORS 100.155 (3).

      (m) A statement by the local governing body or appropriate department thereof that the withdrawal of any variable property designated as “withdrawable variable property” in the declaration in accordance with paragraph (L) of this subsection, will not violate any applicable planning or zoning regulation or ordinance. The statement may be attached as an exhibit to the declaration.

      (8) The plan of development for any variable property included in the declaration or any supplemental declaration of any stage in accordance with subsection (7) of this section shall be subject to any plan of development included in the declaration in accordance with subsection (2) of this section, except that the time limitation specified in subsection (7)(d) of this section shall govern any right reserved under ORS 100.150 (1) with respect to any variable property.

      (9) The information included in the declaration in accordance with subsection (7)(j), (k) and (m) of this section may not be deleted by amendment.

      (10) Approval by the unit owners shall not be required to redesignate variable property as “nonwithdrawable variable property” by supplemental declaration or amendment if such redesignation is required by the local governing body or appropriate department thereof to comply with any planning or zoning regulation or ordinance. If as a result of such redesignation the information required to be included in the supplemental declaration or an amendment under subsection (7)(L)(B) of this section is inconsistent with the information included in the declaration or supplemental declaration in accordance with subsection (7)(g) of this section, an amendment to the declaration approved by at least 75 percent of owners shall be required.

      (11) The statement of an interest in property other than fee simple submitted to the condominium form of ownership and any easements, rights or appurtenances belonging to property submitted to the condominium form of ownership, whether leasehold or fee simple, shall include:

      (a) A reference to the recording index numbers and date of recording of the instrument creating the interest; or

      (b) A reference to the law, administrative rule, ordinance or regulation that creates the interest if the interest is created under law, administrative rule, ordinance or regulation and not recorded in the office of the recording officer of the county in which the property is located. [Formerly 94.029; 1995 c.31 §1; 1997 c.816 §3; 1999 c.677 §40; 2001 c.756 §26; 2003 c.569 §23; 2007 c.410 §8]

 

      100.110 Approval of declaration, supplemental declaration or amendment required; prerequisites; fee. (1) Before a declaration, supplemental declaration or an amendment thereto may be recorded, it must be approved as provided in this section by the county assessor and the Real Estate Commissioner. Before a declaration or supplemental declaration may be recorded, it must be approved by the tax collector of the county in which the property is located. A declaration or amendment thereto may not be approved unless the requirements of subsections (2) to (6) of this section are met. Approval shall be evidenced by execution of the declaration or amendment or by a written approval attached thereto.

      (2) The county assessor of the county in which the property is located shall approve a declaration, supplemental declaration or amendment thereto if:

      (a) The name complies with ORS 100.105 (5) and (6); and

      (b) The plat and floor plans comply with the requirements of ORS 100.115.

      (3) The tax collector of the county in which the property is located shall approve the declaration or supplemental declaration, or an amendment that adds property to the condominium or changes the boundary of a unit for which a plat is required under ORS 100.115 (9)(a), if:

      (a) All ad valorem taxes, special assessments, fees, or other charges required by law to be placed upon the tax roll which have or will become a lien upon the property during the tax year have been paid;

      (b) Advance payment of ad valorem taxes, special assessments, fees or other charges which are not on the tax roll and for which payment is required under paragraph (a) of this subsection has been made to the tax collector utilizing the procedures contained in ORS 92.095 and 311.370; and

      (c) The additional taxes, penalty, and any interest attributable thereto, required because of disqualification of the property from any special assessment have been paid.

      (4) Subject to subsection (5) of this section, the commissioner shall approve the declaration or amendment thereto if:

      (a) The declaration or the amendment thereto complies with the requirements of ORS 100.105 and 100.135;

      (b) The bylaws adopted under ORS 100.410 comply with the requirements of ORS 100.410 and 100.415;

      (c) The plat and floor plans comply with the requirements of ORS 100.115;

      (d) The declaration is for a conversion condominium and the declarant has submitted:

      (A) An affidavit that the notice of conversion was given in accordance with ORS 100.305 and that the notice period has expired;

      (B) An affidavit that the notice of conversion was given in accordance with ORS 100.305 and copies of the written consent of any tenants who received the notice of conversion before expiration of the notice; or

      (C) Any applicable combination of the requirements of subparagraphs (A) and (B) of this paragraph; and

      (e) A paper copy of the plat executed by the declarant and prepared in conformance with ORS 100.115 and a certification of plat execution, on a form prescribed and furnished by the commissioner, have been submitted stating that the paper copy is a true copy of the plat signed by the declarant. The certification may be executed by the declarant, the professional land surveyor who signed the surveyor’s certificate on the plat, the attorney for the declarant, a representative of the title insurance company that issued the information required under ORS 100.640 (5) or 100.660 (2)(d) or another person authorized by the declarant in writing to execute the certification.

      (5) Approval by the commissioner shall not be required for an amendment to a declaration transferring the right of use of a limited common element pursuant to ORS 100.515 (5).

      (6) Before the commissioner approves the declaration or amendment thereto under this section:

      (a) The declarant shall pay to the commissioner a fee determined by the commissioner under ORS 100.670; and

      (b) For an amendment, the Condominium Information Report and the Annual Report described in ORS 100.260 shall be designated current by the Real Estate Agency as provided in ORS 100.255 and the fee required under ORS 100.670 shall be paid.

      (7) If the declaration or amendment thereto approved by the commissioner under subsection (4) of this section is not recorded in accordance with ORS 100.115 within two years from the date of approval by the commissioner, the approval shall automatically expire and the declaration or amendment thereto must be resubmitted for approval in accordance with this section. The commissioner’s approval shall set forth the date on which the approval will expire. [Formerly 94.036; 1991 c.459 §339; 1993 c.270 §1; 1997 c.816 §4; 1999 c.677 §41; 2001 c.756 §27]

 

      100.115 Recording declaration and plat; plat contents; supplemental declaration and plat; approval of declaration and plat amendments; fees. (1) When a declaration or a supplemental declaration under ORS 100.125 is made and approved as required, it shall, upon the payment of the fees provided by law, be recorded by the recording officer. The fact of recording and the date thereof shall be entered thereon. At the time of recording the declaration or supplemental declaration, the person offering it for record shall also file an exact copy, certified by the recording officer to be a true copy thereof, with the county assessor.

      (2) A plat of the land described in the declaration or a supplemental plat described in a supplemental declaration, complying with ORS 92.050, 92.060 (1) and (2), 92.080 and 92.120, shall be recorded simultaneously with the declaration or supplemental declaration. Upon request, the person offering the plat or supplemental plat for recording shall also file an exact copy, certified by the surveyor who made the plat to be an exact copy of the plat, with the county assessor and the county surveyor. The exact copy shall be made on suitable drafting material having the characteristics of strength, stability and transparency required by the county surveyor. The plat or supplemental plat, titled in accordance with subsection (4) of this section, shall:

      (a) Show the location of:

      (A) All buildings and public roads. The location shall be referenced to a point on the boundary of the property; and

      (B) For a condominium containing units described in ORS 100.020 (3)(b)(C) or (D), the moorage space or floating structure. The location shall be referenced to a point on the boundary of the upland property regardless of a change in the location resulting from a fluctuation in the water level or flow.

      (b) Show the designation, location, dimensions and area in square feet of each unit including:

      (A) For units in a building described in ORS 100.020 (3)(b)(A), the horizontal and vertical boundaries of each unit and the common elements to which each unit has access. The vertical boundaries shall be referenced to a known benchmark elevation or other reference point as approved by the city or county surveyor;

      (B) For a space described in ORS 100.020 (3)(b)(B), the horizontal boundaries of each unit and the common elements to which each unit has access. If the space is located within a structure, the vertical boundaries also shall be shown and referenced to a known benchmark elevation or other reference point as approved by the city or county surveyor;

      (C) For a moorage space described in ORS 100.020 (3)(b)(C), the horizontal boundaries of each unit and the common elements to which each unit has access; and

      (D) For a floating structure described in ORS 100.020 (3)(b)(D), the horizontal and vertical boundaries of each unit and the common elements to which each unit has access. The vertical boundaries shall be referenced to an assumed elevation of an identified point on the floating structure even though the assumed elevation may change with the fluctuation of the water level where the floating structure is moored.

      (c) Identify and show, to the extent feasible, the location and dimensions of all limited common elements described in the declaration. The plat may not include any statement indicating to which unit the use of any noncontiguous limited common element is reserved.

      (d) Include a statement, including signature and official seal, of a registered architect, registered professional land surveyor or registered professional engineer certifying that the plat fully and accurately depicts the boundaries of the units of the building and that construction of the units and buildings as depicted on the plat has been completed, except that the professional land surveyor who prepared the plat need not affix a seal to the statement.

      (e) Include a surveyor’s certificate, complying with ORS 92.070, that includes information in the declaration in accordance with ORS 100.105 (1)(a) and a metes and bounds description or other description approved by the city or county surveyor.

      (f) Include a statement by the declarant that the property and improvements described and depicted on the plat are subject to the provisions of ORS 100.005 to 100.625.

      (g) Include such signatures of approval as may be required by local ordinance or regulation.

      (h) Include any other information or data not inconsistent with the declaration that the declarant desires to include.

      (i) If the condominium is a flexible condominium, show the location and dimensions of all variable property identified in the declaration and label the variable property as “WITHDRAWABLE VARIABLE PROPERTY” or “NONWITHDRAWABLE VARIABLE PROPERTY,” with a letter different from those designating a unit, building or other tract of variable property. If there is more than one tract, each tract shall be labeled in the same manner.

      (3) The supplemental plat required under ORS 100.150 (1) shall be recorded simultaneously with the supplemental declaration. Upon request, the person offering the supplemental plat for recording shall also file an exact copy, certified by the surveyor who made the plat to be an exact copy of the plat, with the county assessor and the county surveyor. The exact copy shall be made on suitable drafting material having the characteristics of strength, stability and transparency required by the county surveyor. The supplemental plat, titled in accordance with subsection (4) of this section, shall:

      (a) Comply with ORS 92.050, 92.060 (1), (2) and (4), 92.080, 92.120 and subsections (4) and (5) of this section.

      (b) If any property is withdrawn:

      (A) Show the resulting perimeter boundaries of the condominium after the withdrawal; and

      (B) Show the information required under subsection (2)(i) of this section as it relates to any remaining variable property.

      (c) If any property is reclassified, show the information required under subsection (2)(a) to (d) of this section.

      (d) Include a “Declarant’s Statement” that the property described on the supplemental plat is reclassified or withdrawn from the condominium and that the condominium exists as described and depicted on the plat.

      (e) Include a surveyor’s affidavit complying with ORS 92.070.

      (4) The title of each supplemental plat described in ORS 100.120 shall include the complete name of the condominium, followed by the additional language specified in this subsection and the appropriate reference to the stage being annexed or tract of variable property being reclassified. Each supplemental plat for a condominium recorded on or after January 1, 2002, shall be numbered sequentially and shall:

      (a) If property is annexed under ORS 100.125, include the words “Supplemental Plat No._____: Annexation of Stage_____; or

      (b) If property is reclassified under ORS 100.150, include the words “Supplemental Plat No._____: Reclassification of Variable Property, Tract_____.

      (5) Before a plat or a supplemental plat may be recorded, it must be approved by the city or county surveyor as provided in ORS 92.100. Before approving the plat as required by this section, the city or county surveyor shall:

      (a) Check the boundaries of the plat and units and take measurements and make computations necessary to determine that the plat complies with this section.

      (b) Determine that the name complies with ORS 100.105 (5) and (6).

      (c) Determine that the following are consistent:

      (A) The designation and area in square feet of each unit shown on the plat and the unit designations and areas contained in the declaration in accordance with ORS 100.105 (1)(d);

      (B) Limited common elements identified on the plat and the information contained in the declaration in accordance with ORS 100.105 (1)(h);

      (C) The description of the property in the surveyor’s certificate included on the plat and the description contained in the declaration in accordance with ORS 100.105 (1)(a); and

      (D) For a flexible condominium, the variable property depicted on the plat and the identification of the property contained in the declaration in accordance with ORS 100.105 (7)(c).

      (6) The person offering the plat for approval shall:

      (a) Submit a copy of the proposed declaration and bylaws or applicable supplemental declaration at the time the plat is submitted; and

      (b) Submit the original or a copy of the executed declaration and bylaws or the applicable supplemental declaration approved by the commissioner if required by law prior to approval.

      (7) For performing the services described in subsection (5)(a) to (c) of this section, the city surveyor or county surveyor shall collect from the person offering the plat for approval a fee of $150 plus $25 per building. The governing body of a city or county may establish a higher fee by resolution or order.

      (8)(a) Whenever variable property is reclassified or withdrawn as provided in ORS 100.155 (1) or (2) or property is removed as provided in ORS 100.600 (2), the county surveyor shall, upon the surveyor’s copy of all previously recorded plats relating to the variable property or property being removed and upon any copy thereof certified by the county clerk, trace, shade or make other appropriate marks or notations, including the date and the surveyor’s name or initials, with archival quality black ink in such manner as to denote the reclassification, withdrawal or removal. The recording index numbers and date of recording of the supplemental declaration and plat or amendment and amended plat shall also be referenced on the copy of each plat. The original plat may not be changed or corrected after the plat is recorded.

      (b) For performing the activities described in this subsection, the county clerk shall collect a fee set by the county governing body. The county clerk shall also collect a fee set by the county governing body to be paid to the county surveyor for services provided under this subsection.

      (9) In addition to the provisions of subsection (12) of this section, a plat, including any floor plans that are a part of the plat, may be amended as follows:

      (a)(A) Except as otherwise provided in ORS 100.600, a change to the boundary of the property, a unit or a limited common element or a change to the configuration of other information required to be graphically depicted on the plat shall be made by a plat entitled “Plat Amendment” that shall reference in the title of the amendment the recording information of the original plat and any previous plat amendments.

      (B) The plat amendment shall comply with ORS 92.050, 92.060 (1), (2) and (4), 92.080 and 92.120 and shall include:

      (i) A graphic depiction of the change.

      (ii) For a change to the boundary of the property, a surveyor’s certificate, complying with ORS 92.070.

      (iii) For a change to a boundary of a unit or a limited common element or a change to other information required to be graphically depicted, the statement of a registered architect, registered professional land surveyor or registered professional engineer described in subsection (2)(d) of this section.

      (iv) A declaration by the chairperson and secretary on behalf of the association of unit owners that the plat is being amended pursuant to this subsection. Such declaration shall be executed and acknowledged in the manner provided for acknowledgment of deeds.

      (C) The plat amendment shall be accompanied by an amendment to the declaration authorizing such plat amendment. The declaration amendment shall be executed, approved and recorded in accordance with ORS 100.110 and 100.135.

      (D) Before a plat amendment may be recorded, it must be approved by the city or county surveyor as provided in ORS 92.100. The surveyor shall approve the plat amendment if it complies with the requirements of this subsection. The person offering the plat amendment shall:

      (i) Submit a copy of the proposed amendment to the declaration required under this paragraph when the plat amendment is submitted; and

      (ii) Submit the original or a copy of the executed amendment to the declaration approved by the commissioner if required by law prior to approval of the plat amendment.

      (E) Upon request, the person offering the plat amendment for recording shall also file an exact copy, certified by the surveyor who made the plat to be an exact copy of the plat amendment, with the county assessor and the county surveyor. The exact copy shall be made on suitable drafting material having the strength, stability and transparency required by the county surveyor.

      (b)(A) A change to a restriction or other information not required to be graphically depicted on the plat may be made by amendment of the declaration without a plat amendment described in paragraph (a) of this subsection. An amendment under this paragraph shall include:

      (i) A reference to recording index numbers and date of recording of the declaration, plat and any applicable supplemental declarations, amendments, supplemental plats or plat amendments.

      (ii) A description of the change to the plat.

      (iii) A statement that the amendment was approved in accordance with the declaration and ORS 100.135.

      (B) The amendment shall be executed, approved and recorded in accordance with ORS 100.110 and 100.135.

      (C) Before the amendment may be recorded, it must be approved by the city or county surveyor as provided in ORS 92.100. The surveyor shall approve the amendment if it complies with this subsection. Such approval shall be evidenced by execution of the amendment or by written approval attached thereto.

      (c)(A) Floor plans of a condominium for which a plat was not required at the time of creation may be amended by an amendment to the declaration. An amendment under this paragraph shall include:

      (i) A reference to recording index numbers and date of recording of the declaration and any applicable supplemental declarations or amendments.

      (ii) A description of the change to the floor plans.

      (iii) A graphic depiction of any change to the boundaries of a unit or common element and a statement by a registered architect, registered professional land surveyor or registered professional engineer certifying that such graphic depiction fully and accurately depicts the boundaries of the unit or common element as it currently exists.

      (B) The amendment shall be approved and recorded in accordance with ORS 100.110 and 100.135 except that any change to the floor plans need only comply with the requirements of the unit ownership laws in effect at the time the floor plans were initially recorded.

      (10) After recording of any declaration amendment or plat amendment pursuant to subsection (9) of this section, the county surveyor shall, upon the surveyor’s copy of all previously recorded plats relating to the condominium and any copies filed under ORS 92.120 (3), make such appropriate marks or notations, including the date and the surveyor’s name or initials, with archival quality black ink in such manner as to denote the changes. The recording index numbers and date of recording of the declaration amendment and any plat amendment shall also be referenced on the copy of each plat. The original plat may not be changed or corrected after the plat is recorded.

      (11) For performing the services described in subsections (9) and (10) of this section, the county surveyor shall collect from the person offering the plat amendment or declaration amendment for approval a fee established by the county governing body.

      (12) The following may be amended by an affidavit of correction in accordance with ORS 92.170:

      (a) A plat, whenever recorded.

      (b) Floor plans recorded prior to October 15, 1983. [Formerly 94.042; 1991 c.763 §28; 1997 c.489 §8; 1997 c.816 §5; 1999 c.677 §42; 1999 c.710 §7; 2001 c.104 §30; 2001 c.173 §3; 2001 c.756 §28; 2003 c.569 §24; 2005 c.22 §75; 2007 c.410 §17]

 

      100.120 Supplemental declaration and plat required to annex additional property or reclassify variable property; termination date. (1) To annex additional property to the condominium or to reclassify variable property under ORS 100.125 or 100.150, a supplemental declaration and a supplemental plat shall be executed, approved and recorded by declarant at the time of each annexation or reclassification. The supplemental plat shall comply with ORS 100.115 and the supplemental declarations shall:

      (a) Include a reference to recording index numbers and date of recording of the initial declaration and bylaws.

      (b) Be consistent with the provisions of the original declaration prepared pursuant to ORS 100.105 and any prior recorded supplemental declarations.

      (c) Contain the information required by ORS 100.105 (1) insofar as that information relates to the property being annexed or reclassified.

      (d) State the allocation of undivided interest in the common elements of each unit previously submitted to the provisions of this chapter upon the creation or annexation of the additional property.

      (e) If the stage being annexed contains any variable property, include the information required under ORS 100.105 (7) insofar as that information relates to the property being annexed. The termination date shall be consistent with the information included in the declaration in accordance with ORS 100.105 (2)(b) but may not exceed seven years from the recording of the conveyance of the first unit in the stage to a person other than the declarant. Recording shall be in the county in which the property is located.

      (2) If the Condominium Information Report and the Annual Report described in ORS 100.250 are designated current as provided in ORS 100.255, all such supplemental declarations and plats shall be approved, executed and recorded as provided in ORS 100.100, 100.110 and 100.115. No unit being annexed or created by a supplemental declaration shall be conveyed until after such recording.

      (3) To withdraw all or a portion of variable property from a flexible condominium pursuant to ORS 100.150 (1)(b), a supplemental declaration and plat shall be recorded in accordance with subsection (2) of this section. The supplemental plat shall comply with ORS 100.115 (3) and the supplemental declaration shall:

      (a) Be consistent with the provisions of the declaration or supplemental declaration drawn pursuant to ORS 100.105 (7).

      (b) Include a metes and bounds legal description of the variable property being withdrawn.

      (c) Include a metes and bounds legal description of the resulting boundaries of the condominium after the withdrawal.

      (d) State whether or not any variable property remains which may be reclassified or withdrawn from the condominium and, if property may be withdrawn, include the statement required under ORS 100.105 (7)(m).

      (e) If any variable property is being redesignated as “nonwithdrawable variable property,” include the information required under ORS 100.105 (7)(L).

      (4) Except as provided in subsection (5) of this section, as to property submitted to unit ownership after October 4, 1977, additional units may not be added within property previously submitted to unit ownership unless all unit owners consent to an amendment to the declaration, plat and any floor plans recorded pursuant to ORS 100.115 in order to provide for such additional units.

      (5) As to property submitted to unit ownership before September 27, 1987, if the declaration provides that additional property may be annexed to the condominium, any subsequent stage may contain variable property. The termination date may not be later than the earlier of:

      (a) The date specified in the declaration under ORS 100.105 (2)(b); or

      (b) Seven years from the recording of the conveyance of the first unit in the condominium to a person other than the declarant. Recording shall be in the county in which the property is located. [Formerly 94.047; 1995 c.31 §2; 1999 c.677 §43; 2001 c.756 §29]

 

      100.122 Declaration prevails over inconsistent provisions of bylaws or articles of incorporation. In the event of a conflict between the declaration and the bylaws or between the declaration and any articles of incorporation, the declaration shall prevail except to the extent the declaration is inconsistent with ORS 100.005 to 100.910. [1999 c.677 §62]

 

      Note: 100.122 was added to and made a part of ORS chapter 100 by legislative action but was not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation.

 

      100.123 Authority to amend declaration or bylaws to comply with federal or state law. (1) A declarant may amend the declaration or 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 condominium or units in a condominium.

      (2) If the need to amend the declaration or the bylaws occurs after turnover to the association of unit owners has occurred, the amendment must be approved by the association in accordance with the approval provisions of the declaration or bylaws and this chapter. [2007 c.410 §4]

 

      Note: 100.123 was added to and made a part of ORS chapter 100 by legislative action but was not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation.

 

      100.125 Annexation of additional property; requirements. Subject to ORS 100.120 (4), if the declaration complies with ORS 100.105 (2), until the termination date, additional property may be annexed to the condominium by the recording of a supplemental declaration and supplemental plat in accordance with ORS 100.115 and 100.120. [Formerly 94.048; 2001 c.756 §30]

 

      100.130 Relocation of unit boundaries and common elements by amendment to declaration. (1) Subject to any limitations contained in the declaration, the boundaries between adjoining units, including any intervening common elements, may be relocated or eliminated by an amendment to the declaration. The owners of the affected units shall submit to the board of directors of the association a proposed amendment which shall identify the units involved, state any reallocations of common element interest, voting rights, common expense liability and right to common profits and contain words of conveyance. The board of directors shall approve the amendment unless it determines within 45 days that the reallocations are unreasonable or the relocation or elimination will impair the structural integrity or mechanical systems of the condominium or lessen the support of any portion of the condominium.

      (2) The board of directors of the association of unit owners may require the owners of the affected units to submit an opinion of a registered architect or registered professional engineer that the proposed relocation or elimination will not impair the structural integrity or mechanical systems of the condominium or lessen the support of any portion of the condominium.

      (3) The board of directors of the association or any agent appointed by the board of directors may supervise the work necessary to effect the boundary relocation or elimination.

      (4) Any expenses incurred under subsections (2) and (3) of this section shall be charged to the owners of the units requesting the boundary relocation or elimination.

      (5) The amendment shall be executed by the owners and mortgagees or trust deed beneficiaries of the affected units, certified by the chairperson and secretary of the association and approved and recorded in accordance with ORS 100.135 (2)(b).

      (6) An amendment to the plat and any floor plans necessary to show the altered boundaries between the adjoining units shall be recorded in accordance with ORS 100.115. [Formerly 94.053; 2003 c.569 §25]

 

      100.135 Amendments to declaration; requirements; procedure. (1) Unless otherwise provided in the declaration, an amendment to the declaration may be proposed by a majority of the board of directors of the association of unit owners or by at least 30 percent of the unit owners.

      (2) Except as otherwise provided in ORS 100.005 to 100.625, an amendment of the declaration is not effective unless:

      (a) The amendment is approved by the unit owners as provided in this section and the Real Estate Commissioner and county assessor according to ORS 100.110; and

      (b) The amendment, certified by the chairperson and secretary of the association of unit owners as being adopted in accordance with the declaration and the provisions of this section and acknowledged in the manner provided for acknowledgment of deeds, is recorded notwithstanding a provision in a declaration, including a declaration recorded before January 1, 2002, that requires amendments to be executed and acknowledged by all owners approving the amendment.

      (3) Except as otherwise provided in ORS 100.105 or 100.130 or this section, the declaration may be amended only with the approval of at least 75 percent of owners, or such greater percentage as may be required by the declaration.

      (4) Unless the declaration requires a greater percentage:

      (a) The declaration and plat may be amended to change a general common element to a limited common element or change the boundary of a limited common element with the approval of at least 75 percent of owners and approval of the owners of all units to which the limited common element appertains.

      (b) The declaration may be amended to change a limited common element, or portion thereof, to a general common element with the approval of the owners of all units to which the limited common element appertains and the board of directors.

      (5)(a) Except as otherwise provided in ORS 100.120, 100.130, 100.515, 100.600, 100.605 and 100.625 and paragraph (b) of this subsection or other provisions of the Oregon Condominium Act, an amendment that changes the boundary of the property or a unit shall be approved by all unit owners. Such amendment shall constitute a conveyance and shall include words of conveyance. In addition to the certification required under subsection (2)(b) of this section, an amendment to the boundary of a unit shall also be executed by the owners of all affected units.

      (b) An amendment that adds property owned by the association to the condominium as a common element shall constitute a conveyance and shall:

      (A) Be approved by at least 75 percent of owners;

      (B) Contain words of conveyance;

      (C) Be executed by the chairperson and secretary of the association on behalf of the unit owners and be certified in accordance with subsection (2)(b) of this section; and

      (D) Be accompanied by a plat amendment in accordance with ORS 100.115.

      (c) Nothing in paragraph (b) of this subsection is intended to require property acquired or held by the association pursuant to ORS 100.405 (4)(i) to be added to the condominium.

      (6) Except as otherwise provided in ORS 100.005 to 100.625, an amendment may not change the allocation of undivided interest in the common elements, the method of determining liability for common expenses, the method of determining the right to common profits or the method of determining voting rights of any unit unless such amendment has been approved by the owners of the affected units.

      (7) The declaration may not be amended to limit or diminish any right of a declarant reserved under ORS 100.105 (2) or (7) or any other special declarant right without the consent of the declarant. However, the declarant may waive the declarant’s right of consent.

      (8) Nothing in this section shall affect any other approval that may be required by the declaration, bylaws or other instrument.

      (9) During a period of declarant control reserved under ORS 100.200, voting on an amendment under this section must be without regard to any weighted vote or other special voting allocation reserved by the declarant unless the declaration provides that the declarant has the right to exercise the voting rights with respect to specifically described amendments. Nothing in this subsection prohibits a declarant from reserving the right that declarant’s consent is required for an amendment during a period of declarant control reserved in the declaration.

      (10) An amendment to a declaration or a supplemental declaration shall be conclusively presumed to have been regularly adopted in compliance with all applicable procedures relating to such amendment unless an action is brought within one year after the date such amendment was recorded or the face of the recorded amendment indicates that the amendment received the approval of fewer votes than are required for such approval. However, nothing in this subsection shall prevent the further amendment of an amended declaration or plat in accordance with ORS 100.005 to 100.625.

      (11)(a) The board of directors, by resolution and without the further approval of the unit owners, may cause a restated declaration to be prepared and recorded to codify individual amendments that have been adopted in accordance with this section.

      (b) A declaration restated under this subsection must:

      (A) Include all previously adopted amendments that are in effect and may not include any other changes except to correct scriveners’ errors or to conform format and style;

      (B) Include a statement that the board of directors has adopted a resolution in accordance with paragraph (a) of this subsection and is causing the declaration to be restated and recorded under this subsection;

      (C) Include a reference to the recording index numbers and date of recording of the initial declaration and all previously recorded amendments that are in effect and are being codified;

      (D) Include a certification by the chairperson and secretary of the association that the restated declaration includes all previously adopted amendments that are in effect, that amendments were approved by the county assessor and tax collector if required under ORS 100.110 and that no other changes were made except, if applicable, to correct scriveners’ errors or to conform format and style;

      (E) Be executed and acknowledged by the chairperson and secretary of the association and recorded in the deed records of each county in which the condominium is located; and

      (F) Be approved by the commissioner, and by the county assessor and the tax collector under ORS 100.110 if the restated declaration includes any amendments required to be approved by the county assessor and the tax collector under ORS 100.110 but not previously approved.

      (c) The board of directors shall cause a copy of the recorded restated declaration, including the recording information, to be filed with the commissioner. [Formerly 94.059; 1995 c.31 §3; 1997 c.816 §6; 1999 c.677 §70; 2001 c.756 §31; 2003 c.569 §26]

 

      100.140 Temporary relocation of floating structure; security interests upon termination of condominium. (1) A floating structure described in ORS 100.020 (3)(b)(D) that constitutes part of a condominium may be temporarily relocated for purposes of safety, renovation, repair or remodeling without affecting its status as a condominium or real property. However, if the floating structure is not returned to its original location within 18 months after the relocation, the condominium shall be terminated or, if there are remaining units, partially terminated pursuant to ORS 100.600 and subsection (2) of this section.

      (2) If the condominium is terminated, all security interests affecting any interest in the condominium shall continue to be considered a security in real property after the termination, notwithstanding that the floating structure portion of the condominium may be physically moved from its permanent moorage.

      (3) When a floating structure has been relocated under subsection (1) of this section, the board of directors of the association shall give written notice of the temporary location of the structure to the county assessor within 10 days of the relocation. [1997 c.816 §18]

 

      Note: 100.140 was added to and made a part of ORS chapter 100 by legislative action but was not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation.

 

FLEXIBLE CONDOMINIUMS

 

      100.150 Declarant’s options until termination date. (1) With regard to a flexible condominium, before the termination date, and by recording a supplemental declaration and a supplemental plat in accordance with ORS 100.115 and 100.120, the declarant may:

      (a) Reclassify all or a portion of the property designated as variable in the declaration and on the plat, as one or more general common elements, limited common elements, units or a combination of the elements and units.

      (b) Unless designated in the declaration or on the plat as nonwithdrawable property, withdraw all or a portion of the variable property from the condominium.

      (2) Until variable property is withdrawn or reclassified as provided in subsection (1) of this section or under ORS 100.155 (1):

      (a) The property shall be a distinct classification of property and may not be a common element or unit of the condominium.

      (b) The property shall be considered a parcel of real property and shall be subject to separate assessment and taxation by any taxing unit in like manner as other parcels of real property.

      (c) Unless otherwise specifically provided in the declaration or supplemental declaration:

      (A) The declarant shall be responsible for the payment of all assessments, taxes and other expenses of the variable property. If the declarant fails to pay any expenses of any variable property designated as nonwithdrawable variable property, the board of directors may elect to pay the expenses and assess the unit owners as a common expense. All costs incurred may be charged to the declarant.

      (B) Ownership or occupancy of variable property shall not confer any right to use the common elements of the condominium.

      (C) Ownership or occupancy of units shall not confer any right to use variable property.

      (D) Variable property shall not be subject to assessments for expenses of the condominium. [Formerly 94.021; 2001 c.756 §32]

 

      100.155 Variable property; uses and restrictions. (1) If by the termination date specified in the declaration there is any remaining variable property:

      (a) Any property designated nonwithdrawable variable property shall become part of the common elements and any interest in such property held for security purposes shall be automatically extinguished by reclassification.

      (b) Any property designated withdrawable variable property shall be automatically withdrawn from the condominium as of the termination date.

      (c) Subject to paragraph (d) of this subsection, the association may record in the office of the recording officer in the county in which the condominium is located:

      (A) For property reclassified under paragraph (a) of this subsection, a “Statement of Reclassification of Variable Property” stating that the remaining nonwithdrawable variable property has been reclassified to common elements pursuant to paragraph (a) of this subsection.

      (B) For property withdrawn under paragraph (b) of this subsection, a “Statement of Withdrawal of Variable Property from Condominium” stating that remaining withdrawable variable property has been withdrawn from the condominium pursuant to paragraph (b) of this subsection.

      (d) A statement described in paragraph (c) of this subsection shall:

      (A) Include the name of the condominium, a reference to the recording index numbers and date of recording of the declaration, the plat creating the affected variable property and any applicable supplemental declaration.

      (B) Include a description of the reclassified or withdrawn variable property complying with ORS 93.600.

      (C) Be executed by the chairperson and secretary of the association and acknowledged in the manner provided for acknowledgment of deeds.

      (e) After recording a statement under paragraph (c) of this subsection, the association shall provide a copy of the recorded statement to the county surveyor. Upon receipt of the copy or other notification, the county surveyor shall, upon the surveyor’s copy of all previously recorded plats relating to the condominium and any copies of the plat filed under ORS 92.120 (3), make appropriate marks and notations, including the date and the surveyor’s name or initials, with archival quality black ink in a manner that denotes the reclassification or withdrawal. The recording index numbers and date of recording of the statement shall also be referenced on the copy of each plat. The original plat may not be changed or corrected after it is recorded with the county clerk.

      (2)(a) Unless expressly prohibited by the declaration, any variable property automatically withdrawn from the condominium under subsection (1)(b) of this section or voluntarily withdrawn under ORS 100.150 (1)(b) may be later annexed to the condominium by the recording of a supplemental declaration and plat in accordance with ORS 100.120 (2) if such action is first approved by at least 75 percent of all voting rights in the manner required for an amendment to the declaration.

      (b) The supplemental declaration and plat shall be executed by the chairperson and secretary on behalf of the association and acknowledged in the manner provided for acknowledgment of deeds by such officers. Except for the termination date, the supplemental declaration shall comply with ORS 100.120 (1) and shall state that the annexation was approved by at least 75 percent of all voting rights.

      (3)(a) Unless expressly prohibited by the declaration and notwithstanding the termination date, the association may, with respect to any variable property automatically reclassified, exercise any rights previously held by the declarant. The exercise of any right shall first be approved by at least a majority of all voting rights. All other actions relating to such reclassified general common elements shall be regulated and governed in like manner as other general common elements of the condominium.

      (b) If a supplemental declaration and plat is required for any action, the plat shall be executed by the chairperson and secretary of the association and shall comply with the requirements of this chapter as to a supplemental declaration and the recording of plats.

      (4) Title to any additional units created under subsection (3) of this section shall automatically be vested in the association upon the recording of a supplemental declaration and plat. The board of directors acting on behalf of the association shall have the power to hold, convey, lease, encumber or otherwise deal with a unit or any interest therein in like manner as other property owned by the association.

      (5) The county clerk may charge a fee for recording a statement under this section according to provisions of ORS 205.320 (4). [Formerly 94.022; 2001 c.756 §33]

 

RIGHTS AND DUTIES OF DECLARANT

 

      100.170 Easement held by declarant. Subject to the provisions of the declaration, a declarant has an easement through the common elements as may be reasonably necessary for the purpose of discharging any obligation of the declarant or exercising any special declarant right, whether arising under the provisions of this chapter or reserved in the declaration or bylaws. [Formerly 94.066]

 

      100.175 Reserve account for maintaining, repairing and replacing common elements; reserve study; maintenance plan. (1) The declarant, on behalf of the association of unit owners, shall:

      (a) Conduct an initial reserve study as described in subsection (3) of this section;

      (b) Prepare an initial maintenance plan as described in subsection (4) of this section; and

      (c) Establish a reserve account as provided in subsection (2) of this section.

      (2)(a) A reserve account shall be established to fund major maintenance, repair or replacement of those common elements all or part of which will normally require major maintenance, repair or replacement in more than one and less than 30 years, for exterior painting if the common elements include exterior painted surfaces, and for such other items as may be required by the declaration or bylaws. The reserve account need not include:

      (A) Items that can reasonably be funded from the general budget or other funds or accounts of the association; or

      (B) A reserve for limited common elements for which maintenance and replacement are the responsibility of one or more, but less than all, unit owners under the provisions of the declaration or bylaws.

      (b) The reserve account shall be established in the name of the association of unit owners. The association is responsible for administering the account and for making periodic payments into the account.

      (c) The reserve portion of the initial assessment determined by the declarant shall be based on:

      (A) The reserve study described in subsection (3) of this section;

      (B) In the case of a conversion condominium, the statement described in ORS 100.655 (1)(g); or

      (C) Other reliable information.

      (d) The reserve account must be funded by assessments against the individual units for the purposes for which the reserve account is established.

      (e) The assessment under this subsection accrues from the time of the conveyance of the first individual unit assessed as provided in ORS 100.530.

      (3)(a) The board of directors of the association annually shall conduct a reserve study or review and update an existing study to determine the reserve account requirements and may:

      (A) Adjust the amount of payments in accordance with the study or review; and

      (B) Provide for other reserve items that the board of directors, in its discretion, may deem appropriate.

      (b) The reserve study shall:

      (A) Identify all items for which reserves are or will be established;

      (B) Include the estimated remaining useful life of each item as of the date of the reserve study; and

      (C) Include for each item, as applicable, an estimated cost of maintenance and repair and replacement at the end of the item’s useful life.

      (4)(a) The board of directors shall prepare a maintenance plan for the maintenance, repair and replacement of all property for which the association has maintenance, repair or replacement responsibility under the declaration or bylaws or this chapter. The maintenance plan shall:

      (A) Describe the maintenance, repair and replacement to be conducted;

      (B) Include a schedule for the maintenance, repair and replacement;

      (C) Be appropriate for the size and complexity of the maintenance, repair and replacement responsibility of the association; and

      (D) Address issues that include but are not limited to warranties and the useful life of the items for which the association has maintenance, repair or replacement responsibility.

      (b) The board of directors shall review and update the maintenance plan described under this subsection as necessary.

      (5)(a) Except as provided in paragraph (b) of this subsection, the reserve study requirements under subsection (3) of this section and the maintenance plan requirements under subsection (4) of this section do not apply to a condominium consisting of one or two units, excluding units used for parking, storage or other uses ancillary to a unit:

      (A) After the sale of the first unit to a person other than a successor declarant, if the condominium is created on or after September 27, 2007; or

      (B) If the condominium was created before September 27, 2007, notwithstanding any requirement in the declaration or bylaws.

      (b) The reserve study requirements under subsection (3) of this section and the maintenance plan requirements under subsection (4) of this section apply to a flexible condominium or a staged condominium created on or after September 27, 2007, if the condominium might in the future consist of more than two units.

      (6)(a) If the declaration or bylaws require a reserve account, the reserve study requirements of subsection (3) of this section and the maintenance plan requirements of subsection (4) of this section first apply to the association of a condominium recorded prior to October 23, 1999:

      (A) Upon adoption of a resolution by the board of directors in accordance with the bylaws providing that the requirements of subsections (3) and (4) of this section apply to the association; or

      (B) Upon submission to the board of directors of a petition signed by a majority of unit owners mandating that the requirements of subsections (3) and (4) of this section apply to the association.

      (b) The reserve study and the maintenance plan shall be completed within one year of the date of adoption of the resolution or submission of the petition to the board of directors.

      (7)(a) Except as provided in paragraph (b) of this subsection, the reserve account is to be used only for the purposes for which reserves have been established and is to be kept separate from other funds.

      (b) After the individual unit owners have assumed administrative responsibility for the association under ORS 100.210, if the board of directors has adopted a resolution, which may be an annual continuing resolution, authorizing the borrowing of funds:

      (A) The board of directors may borrow funds from the reserve account to meet high seasonal demands on the regular operating funds or to meet unexpected increases in expenses.

      (B) Not later than the adoption of the budget for the following year, the board of directors shall adopt by resolution a written payment plan providing for repayment of the borrowed funds within a reasonable period.

      (8) Restrictions on the use of the reserve account do not prohibit its prudent investment subject to any constraints on investment of association funds imposed by the declaration, bylaws or rules of the association of unit owners.

      (9) Assessments paid into the reserve account are the property of the association of unit owners and are not refundable to sellers of units.

      (10) In addition to the authority of the board of directors under subsection (3)(a) of this section, following turnover, the association may:

      (a) On an annual basis, elect not to fund the reserve account described in subsection (1) of this section by unanimous vote of the owners; or

      (b) Elect to reduce or increase future assessments for the reserve account described in subsection (1) of this section by an affirmative vote of at least 75 percent of the owners. [Formerly 94.072; 1997 c.816 §7; 1999 c.677 §44; 2001 c.756 §34; 2003 c.569 §27; 2005 c.543 §2; 2007 c.409 §23]

 

WARRANTIES ON NEW UNITS

 

      100.185 Express warranties; form; exclusion of implied warranties; exemption for consumer products; claims. (1) The declarant shall expressly warrant against defects in the plumbing, electrical, mechanical, structural, and all other components of the newly constructed units and common elements. Such warranty:

      (a) Shall exist on a unit and the related limited common elements for not less than one year from the date of delivery of possession of that unit by the declarant to the first unit owner other than the declarant;

      (b) Shall exist on the general common elements for not less than one year from the initial conveyance of title to a unit by the declarant to a unit owner other than the declarant, or, in the case of a staged or a flexible condominium, for not less than one year from such initial conveyance of title or completion of the construction of the specific general common element, whichever is later;

      (c) Shall be contained in the contract or other agreement to purchase;

      (d) Shall be separate from, and in addition to, any warranties provided by any other person;

      (e) Shall be in lieu of any implied warranties by the declarant against defects in the plumbing, electrical, mechanical, structural or other components of any newly constructed unit or common elements; and

      (f) Shall name the association of unit owners as an express beneficiary with regard to general common elements.

      (2) A written claim reasonably specifying a breach of the warranty on the unit and the related limited common elements must be delivered to the declarant before the expiration of such warranty. A written claim reasonably specifying a breach of the warranty on the general common elements must be delivered to the declarant within two years of expiration of such warranty, but the claim must be for a defect existing prior to the expiration of such warranty under this section. An action to enforce such warranty shall not be commenced later than four years after expiration of such warranty.

      (3) For the purposes of this section, “newly constructed units and common elements” means:

      (a) Units and related limited common elements:

      (A) That have been substantially completed for less than three years; and

      (B) That have been occupied for less than 12 months.

      (b) General common elements:

      (A) That have been substantially completed for less than three years; and

      (B) That were constructed contemporaneously with units that have been occupied for less than 12 months.

      (4) The warranty required under subsection (1) of this section is not required for consumer products as defined in 15 United States Code 2301 (1). [Formerly 94.017; 1999 c.677 §45; 2001 c.756 §35]

 

DECLARANT CONTROL; TURNOVER

 

      100.200 Declarant control of association. (1) Subject to subsection (2) of this section, the declaration or bylaws may specifically provide for a period of declarant control of the association of unit owners, during which period a declarant or person designated by the declarant may appoint and remove officers and members of the board of directors and exercise powers and responsibilities otherwise assigned by the declaration, bylaws or the provisions of this chapter to the association, the officers or the board of directors. No formal or written proxy or power of attorney need be required of the unit owners to vest the declarant with such authority. Declarant control may be achieved by allocating in the declaration greater voting rights to a unit owned by the declarant.

      (2) The declaration or bylaws may not provide for a period of administrative control of the association of unit owners by the declarant for a period exceeding:

      (a) In a single stage condominium the earlier of:

      (A) Three years from the date the first unit is conveyed; or

      (B) The date of conveyance to persons other than the declarant of 75 percent of the units.

      (b) In a staged or flexible condominium the earlier of:

      (A) Seven years from the date the first unit is conveyed; or

      (B) The date of conveyance to persons other than the declarant of 75 percent of the units which may be created or annexed under ORS 100.125 or 100.150, whichever is applicable.

      (3) A declarant may voluntarily relinquish any rights reserved in the declaration or bylaws under subsection (1) of this section.

      (4) Upon the expiration of any period of declarant control reserved in the declaration or bylaws under subsection (1) of this section, such right shall automatically pass to the unit owners, including the declarant if the declarant then owns one or more units in the condominium.

      (5) A declaration or bylaws may not be amended to increase the scope of any rights reserved in the declaration or bylaws under subsection (1) of this section without the consent of all unit owners.

      (6) The limitations specified in subsection (2) of this section shall not limit any right reserved by the declarant under ORS 100.105 (2) or (7), 100.125 or 100.150 or any other special declarant right which does not relate to administrative control of the association by the declarant including, but not limited to, the right to require that the declaration or bylaws may not be amended without the declarant’s consent until a stated date, the expiration of a stated number of years or the occurrence of a stipulated event.

      (7) The limitations of subsection (2) of this section do not apply to a condominium or condominium units committed to a timeshare plan as defined in ORS 94.803. [Formerly 94.078]

 

      100.205 Transitional committee; notice of meeting for formation. A transitional committee shall be established as provided in this section in a single stage condominium consisting of at least 20 units and in a staged or flexible condominium if the number of units which the declarant may submit to the provisions of this chapter under ORS 100.125 or 100.150 totals at least 20.

      (1) Unless the turnover meeting has been held, the declarant shall call a meeting of the unit owners for the purpose of forming a transitional committee in accordance with the bylaws of the condominium. The declarant shall call such meeting:

      (a) In a single stage condominium, within 60 days of conveyance to persons other than the declarant of 50 percent of the units.

      (b) In a staged or flexible condominium, within 60 days of conveyance to persons other than the declarant of 50 percent of the total number of units which the declarant may submit to the provisions of this chapter under ORS 100.125 or 100.150.

      (2) The transitional committee shall be advisory only and shall consist of two or more members selected by unit owners other than the declarant and may include not more than one representative of the declarant. The members shall serve until the turnover meeting. The function of the committee shall be that of enabling ease of transition from control of the administration of the association of unit owners by the declarant to control by the unit owners. The committee shall have access to the information, documents and records which the declarant must turn over to the unit owners under ORS 100.210 (5).

      (3) The declarant shall give notice of the meeting required under subsection (1) of this section in accordance with the bylaws of the condominium to each unit owner at least seven but not more than 50 days prior to the meeting. The notice shall state the purpose of the meeting and the time and place where it is to be held.

      (4) If the meeting required under subsection (1) of this section is not called by the declarant within the time specified, the meeting may be called and notice given by a unit owner.

      (5) If the owners other than the declarant do not select members for the committee under subsection (2) of this section, the declarant shall have no further responsibility to form the committee. [Formerly 94.084]

 

      100.210 Turnover meeting; notice; transfer of control. (1) A turnover meeting shall be called by the declarant within 90 days of the expiration of any period of declarant control reserved in the declaration or bylaws under ORS 100.200. If no control has been reserved, the declarant shall call the turnover meeting within 90 days of the earlier of:

      (a) In a single stage condominium, three years from the date of conveyance of the first unit to a person other than a successor declarant or conveyance of 50 percent of the units.

      (b) In a staged or flexible condominium, seven years from the date of conveyance of the first unit to a person other than the declarant or conveyance to persons other than a successor declarant of 50 percent of the total number of units which the declarant may submit to the provisions of this chapter under ORS 100.125 or 100.150.

      (2) The declarant shall give notice of the turnover meeting in accordance with the bylaws of the condominium to each unit owner at least 10 but not more than 50 days prior to the meeting. The notice shall state the purpose of the meeting and the time and place where it is to be held.

      (3) If the meeting required under subsection (1) of this section is not called by the declarant within the time specified, the meeting may be called and notice given by a unit owner or any first mortgagee of a unit.

      (4) At the turnover meeting:

      (a) The declarant shall relinquish control of the administration of the association of unit owners and the unit owners shall assume the control;

      (b) If a quorum of the unit owners is present, the unit 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 condominium; and

      (c) The declarant shall deliver to the association the items specified in subsection (5) of this section.

      (5) At the turnover meeting the declarant shall deliver to the association all property of the unit owners and the association of unit owners held or controlled by the declarant including, but not limited to, the following items, if applicable:

      (a) The original or a photocopy of the recorded declaration and bylaws of the condominium and any supplements and amendments thereto.

      (b) A copy of the articles of incorporation.

      (c) The minute books, including all minutes, and other books and records of the association.

      (d) The reserve study, the maintenance plan and all updates described in ORS 100.175 and other sources of information that serve as a basis for calculating reserves in accordance with ORS 100.175.

      (e) Any rules and regulations which have been promulgated.

      (f) 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 under ORS 100.200.

      (g) 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.

      (B) Must be reviewed, in accordance with the Statements on Standards for Accounting and Review Services issued by the American Institute of Certified Public Accountants, by an independent certified public accountant licensed in the State of Oregon if the annual assessments of an association of unit owners exceed $75,000.

      (h) Association funds or control thereof, including, but not limited to, funds for reserve required under ORS 100.530 (3)(b) and any bank signature cards.

      (i) All tangible personal property that is property of the association and an inventory of such property.

      (j) A copy of the following, if available:

      (A) The as-built architectural, structural, engineering, mechanical, electrical and plumbing plans.

      (B) The original specifications indicating thereon all 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.

      (k) Insurance policies.

      (L) Copies of any occupancy permits which have been issued for the condominium.

      (m) Any other permits issued by governmental bodies applicable to the condominium in force or issued within one year prior to the date the unit owners assume control of the administration of the association of unit owners.

      (n) A list of the general contractor and the subcontractors responsible for construction or installation of the major plumbing, electrical, mechanical and structural components of the common elements.

      (o) A roster of unit owners and their addresses and telephone numbers, if known, as shown on the records of the declarant.

      (p) Leases of the common elements and any other leases to which the association is a party.

      (q) Employment or service contracts in which the association is one of the contracting parties or service contracts in which the association or the unit 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.

      (r) Any other contracts to which the association of unit owners is a party.

      (6) 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 (5) of this section.

      (7) If the declarant has complied with this section, unless the declarant otherwise has sufficient voting rights as a unit owner to control the association, the declarant is not responsible for the failure of the unit 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 (4) of this section. The declarant shall be relieved of any further responsibility for the administration of the association except as a unit owner of any unsold unit.

      (8) If the unit owners present do not constitute a quorum or the unit 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 subsection (1) of this section:

      (a) At any time before the election of the number of directors sufficient to constitute a quorum, a unit owner or first mortgagee of a unit 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 unit owners and first mortgagees present at the special meeting shall select a person to preside over the meeting.

      (b) A unit owner or first mortgagee of a unit may request a court to appoint a receiver as provided in ORS 100.418. [Formerly 94.091; 1999 c.677 §46; 2001 c.756 §36; 2003 c.803 §21; 2007 c.409 §24]

 

SPECIAL DECLARANT RIGHTS

 

      100.220 Liabilities and obligations arising from transfer of special declarant right; exemptions. (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. 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 directors; or

      (d) Has contributed more than 20 percent of the capital of the transferor or successor declarant.

      (2) 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 and remains liable for warranty obligations imposed under ORS 100.185. Lack of privity does not deprive any unit 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 this chapter 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 condominium.

      (c) A transferor who retains no special declarant right has no liability for any act or omission or any breach of a contractual or warranty obligation arising from the exercise of a special declarant right by a successor declarant who is not an affiliate of the transferor.

      (3) 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, including without limitation warranties required under ORS 100.185, by the declarant or previous successor declarant or for any breach of fiduciary obligation by such person. Such a successor declarant, however, shall:

      (A) Comply with any provisions of the declaration and bylaws which pertain to such successor declarant’s ownership of the unit or units and the exercise of any special declarant right;

      (B) Comply with the provisions of ORS 100.015 and 100.635 to 100.910 in connection with the sale of any unit or units, except as provided in ORS 100.665; and

      (C) Give the warranties described in ORS 100.185 only with respect to common elements or units constructed by the successor declarant. [Formerly 94.097]

 

      100.225 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 the condominium, 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 right 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 condominium in which the declarant has reserved the right to add additional stages under ORS 100.125, the transferee shall not acquire the right to annex additional stages to the condominium unless the transferee simultaneously acquires from the declarant property adjacent to the condominium which is entitled to be annexed to the condominium, 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 condominium. [Formerly 94.103]

 

DOCUMENT FILING

 

      100.250 Documents required to be filed with Real Estate Agency; fees. (1) The following shall be delivered to the Real Estate Agency for filing on behalf of the association in accordance with ORS 100.260 (5):

      (a) A Condominium Information Report described in ORS 100.260 (1) by the declarant not later than 90 days after the declaration is recorded under ORS 100.100 or by the board of directors if required under ORS 100.275.

      (b) The Annual Report described in ORS 100.260 (2) by the declarant until the turnover meeting and the board of directors thereafter every year not later than the report date which shall be the anniversary date of filing the Condominium Information Report.

      (c) An amendment to the reports required under this subsection by the declarant until the turnover meeting and the board of directors thereafter, within 30 days after there is a change in the information contained in a report.

      (2) The Real Estate Agency shall collect the following fees for the documents delivered for filing:

______________________________________________________________________________

 

                  Document                                     Fee

 

      (a)  Condominium Information Report     $100

      (b)  Annual Report                                    $ 25

      (c)  Amendment                                        $ 75

      (d) Application for

            Termination Statement                        $ 75

      (e)  Statement of Resignation                   $ 75

______________________________________________________________________________

 

      (3) Any fee paid under subsection (2) of this section or ORS 100.275 may be a common expense of the condominium. [1989 c.595 §38; 1991 c.132 §13; 1995 c.31 §4; 2001 c.756 §37]

 

      Note: 100.250 to 100.290 were added to and made a part of ORS 100.005 to 100.910 by legislative action but were not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation.

 

      100.255 Processing of documents filed with Real Estate Agency; procedures. (1) If after review the Real Estate Agency determines that a report or amendment submitted for filing under ORS 100.250 (1) satisfies the requirements of ORS 100.260, and all fees have been paid, the Real Estate Agency shall file the document and designate the filing “current.”

      (2) The Real Estate Agency files a document by indicating thereon that it has been filed by the Real Estate Agency and the date of filing. The time of filing shall be considered to be 12:01 a.m. on that date. After filing a document, the Real Estate Agency shall return a copy to the association.

      (3) If the Real Estate Agency refuses to file a document, the Real Estate Agency shall return it to the association within 10 business days after the document was received by the Real Estate Agency, together with a brief written explanation of the reason or reasons for the refusal.

      (4) The Real Estate Agency’s duty to file documents under this section and ORS 100.250 is ministerial. The Real Estate Agency is not required to verify or inquire into the legality or truth of any matter included in any document delivered to the Real Estate Agency for filing. The Real Estate Agency’s filing or refusing to file a document does not:

      (a) Affect the validity or invalidity of the document in whole or in part; or

      (b) Relate to the correctness or incorrectness of information contained in the document.

      (5) The Real Estate Agency’s refusal to file a document does not create a presumption that the document is invalid or that information contained in the document is incorrect.

      (6) If the Real Estate Agency refuses to file a document delivered to the Real Estate Agency for filing, the association, in addition to any other legal remedy which may be available, shall have the right to appeal from such final order pursuant to the provisions of ORS 183.484. [1989 c.595 §39; 1995 c.31 §5]

 

      Note: See note under 100.250.

 

      100.260 Condominium Information and Annual Reports; contents; fees. (1) The Condominium Information Report required under ORS 100.250 (1)(a) shall set forth:

      (a) The name of the association;

      (b) The name of the condominium and the county in which the condominium is located;

      (c) The mailing address, including the street and number, if any, and county of the association;

      (d) The date the condominium declaration was recorded and the recording index numbers;

      (e) The name and residence or business address, including the street and number, of the person designated as agent to receive service of process in cases provided in ORS 100.550 (1) and any other legal proceeding relating to the condominium or association; and

      (f) The number and type of units as follows:

      No._____ Living Units

      No._____ Commercial/Office Units

      No._____ Other (describe) ________

      ________________________

      (2) The Annual Report required under ORS 100.250 (1)(b) shall set forth:

      (a) The information required under subsection (1)(a), (b), (c) and (e) of this section;

      (b) The names and addresses of the chairperson and secretary of the association; and

      (c) If the designated agent is changed, a statement that the new agent has consented to the appointment.

      (3) The amendment required under ORS 100.250 (1)(c) shall set forth:

      (a) The name of the association as shown on the current records of the Real Estate Agency;

      (b) The name of the condominium and county in which the condominium is located;

      (c) A statement of the information as changed; and

      (d) If the current designated agent is to be changed, the name of the new designated agent and residence or business address, including the street and number, and a statement that the new agent has consented to the appointment.

      (4) The filing by the Real Estate Agency of an amendment which changes the designated agent shall terminate the existing designated agent on the effective date of the filing and establish the newly appointed designated agent as that of the association.

      (5) The reports and amendment described in this section and an application for termination described in ORS 100.280 shall be made on forms prescribed and furnished by the Real Estate Agency and must be accompanied by the correct filing fee and shall:

      (a) Contain information current as of 30 days before delivery for filing;

      (b) Be executed by the designated agent and until the turnover meeting by the declarant and thereafter by the chairperson or secretary of the association;

      (c) State beneath or opposite the signature the name of the person and the capacity in which the person signs; and

      (d) Contain any additional identifying information that the Real Estate Agency may require by rule. [1989 c.595 §40; 1995 c.31 §6; 2001 c.756 §38]

 

      Note: See note under 100.250.

 

      100.265 Annual Report; notification; filing. (1) Not less than 30 days before the report date, the Real Estate Agency shall mail the Annual Report form described in ORS 100.260 (2) to the association at the mailing address shown for the association in the current records of the office and shall indicate the date by which the report is due. Failure of the association to receive the Annual Report form from the Real Estate Agency shall not relieve the association of its duty to deliver for filing to the office as required under ORS 100.250 (1)(c).

      (2) After the report date, if no Annual Report has been delivered for filing, the Real Estate Agency shall send to the designated agent a notice of delinquency notifying the association that the filing shall be designated “delinquent” unless a report is filed within 45 days after the mailing of such notice.

      (3) When an association has been given a notice of delinquency in accordance with subsection (2) of this section and failed to correct the delinquency within 45 days:

      (a) The Real Estate Agency shall designate the filing “delinquent.”

      (b) If within 30 days after written notice has been given to the association by the opposing party in any suit or action to which the association is a party, the association has not complied with the filing requirements of ORS 100.250 (1), the association may not continue to prosecute or defend such suit or action until the filing is designated “current” as provided in ORS 100.255. A copy of such notice shall be delivered to the Real Estate Agency. The Real Estate Agency shall retain such copy with the filing for the association for a period of not less than 12 months. [1989 c.595 §41; 1995 c.31 §7]

 

      Note: See note under 100.250.

 

      100.275 Application of ORS 100.250 to 100.280. (1) Subject to ORS 100.550 (3), ORS 100.250 to 100.280, including the filing of a Condominium Information Report described in ORS 100.260 (1), apply to property submitted to the provisions of this chapter before October 3, 1989, if:

      (a) The board of directors of the association receives a written request to comply with such sections from at least one unit owner or holder of a first mortgage or deed of trust on a unit;

      (b) The board of directors of the association adopts a resolution to comply with such sections in accordance with the bylaws;

      (c) The association is a party to a suit or action, the person designated in the declaration under ORS 100.105 (1)(L), the chairperson or secretary receives written notice to comply with such sections from any other party to such suit or action. A copy of the notice shall be delivered to the Real Estate Agency. The Real Estate Agency shall provide a copy of the filed report to the requesting party and may charge the association a fee for cost of such action. If the association fails to deliver for filing such report, the provisions of ORS 100.265 (3) shall apply; or

      (d) A filing is required to comply with the requirements of ORS 100.120, 100.135 or 100.450.

      (2) The Condominium Information Report required under subsection (1) of this section shall be executed by the chairperson or secretary of the association and the designated agent. [1989 c.595 §42; 1995 c.31 §8; 2001 c.756 §60; 2007 c.410 §18]

 

      Note: See note under 100.250.

 

      100.280 Termination of filing Condominium Information Report. (1) An association may apply to the Real Estate Agency to terminate a filing under ORS 100.250 (1). The application shall satisfy the requirements of ORS 100.260 (5) and set forth:

      (a) The name of the association as shown on the current records of the Real Estate Agency;

      (b) The name of the condominium and county in which the condominium is located;

      (c) The name and residence or business address, including the street and number, of a designated agent to whom a person initiating any proceeding may direct service for a period of two years; and

      (d) A commitment to notify the Real Estate Agency for a period of two years from the date of termination of any change of the person or address stated in paragraph (c) of this subsection.

      (2) A copy of the instrument of termination, evidencing the recording index numbers, recorded under ORS 100.600, shall be delivered with the application.

      (3) Upon filing by the Real Estate Agency of the application to terminate the filing, the duty of the association to comply with ORS 100.250 (1) shall cease. [1989 c.595 §43; 1995 c.31 §9]

 

      Note: See note under 100.250.

 

      100.285 Resignation of designated agent; procedures; effective date. (1) The designated agent of the association may resign as agent by delivering a signed statement of resignation to the Real Estate Agency together with the filing fee prescribed in ORS 100.250 and giving notice in the form of a copy of the statement to the association. The statement shall include the name of the association and the name of the condominium and the county in which the condominium is located.

      (2) Upon receipt of the statement of resignation in proper form and the correct fee, the Real Estate Agency shall file the resignation statement. The copy of the statement given under subsection (1) of this section shall be mailed to the association at the mailing address shown for the association in the current records of the office. For purposes of this subsection, written notice is effective at the earliest of the following:

      (a) When received;

      (b) Five days after its deposit in the United States mail, as evidenced by the postmark, if mailed postpaid and correctly addressed; or

      (c) On the date shown on the return receipt, if sent by registered or certified mail, return receipt requested and the receipt is signed by or on behalf of the addressee.

      (3) The agency appointment is terminated on the 31st day after the date on which the statement of resignation was filed by the Real Estate Agency unless the association sooner appoints a successor designated agent as provided in ORS 100.260 (4), thereby terminating the capacity of the prior agent.

      (4) If by the 31st day after the date on which the statement of resignation was filed by the Real Estate Agency, the association has failed to submit for filing an amendment appointing a designated agent, the Real Estate Agency shall designate the filing “delinquent” and the provisions of ORS 100.265 (3) shall apply. [1989 c.595 §43a; 1993 c.190 §16; 1995 c.31 §10]

 

      Note: See note under 100.250.

 

      100.290 Rules. The Real Estate Agency may adopt rules as are necessary or proper for the administration of ORS 100.250 to 100.280. [1989 c.595 §44; 1995 c.31 §11]

 

      Note: See note under 100.250.

 

CONVERSION CONDOMINIUMS

 

      100.300 Inapplicability of ORS 100.301 to 100.320 to transient lodgings. ORS 100.301 to 100.320 do not apply to units rented as transient lodgings at a hotel, motel or inn and do not apply to negotiations, arrangements or agreements for such transient occupancy of the units. [Formerly 94.109]

 

      100.301 Definitions for ORS 100.301 to 100.320. As used in ORS 100.301 to 100.320, “dwelling unit” and “tenant” have the meanings given those terms in ORS 90.100. [2007 c.410 §10]

 

      100.305 Conversion condominium; notice. (1) A declarant of a conversion condominium shall give each of the existing tenants of any building which the declarant intends to submit to the provisions of this chapter notice of the conversion at least 120 days before the conversion condominium is submitted to the provisions of this chapter. Thereafter, until the property is submitted to the provisions of this chapter, the declarant shall provide a copy of such notice to any new tenant before the commencement of the tenancy. The notice of conversion shall:

      (a) State that the declarant intends to create a conversion condominium and include general information relating to the nature of condominium ownership.

      (b) State that the notice does not constitute a notice to terminate the tenancy.

      (c) State whether there will be a substantial alteration of the physical layout of the unit.

      (d) State whether the declarant intends to offer the unit for sale and, if so:

      (A) Set forth the rights of the tenant under ORS 100.310 (1) to (3), including the time available for the declarant to make an offer to sell and for the tenant to respond;

      (B) Set forth a good faith estimate of the approximate price range for which the unit will be offered for sale to the tenant under ORS 100.310 (1) and (2);

      (C) Set forth a good faith estimate of the monthly operational, maintenance and any other common expenses or assessments appertaining to the unit;

      (D) State that financial assistance for purchasing the unit may be available from a local governing body, the Housing and Community Services Department or a regional housing center;

      (E) Give contact information for the local regional housing center or, if no regional housing center exists, for the Housing and Community Services Department; and

      (F) State that the landlord may not terminate the tenancy without cause if the termination would take effect before the end of the 120-day period described in this subsection or the 60-day period described in ORS 100.310.

      (e) Include information in substantially the following form:

______________________________________________________________________________

 

NOTICE OF RENT INCREASE

RESTRICTIONS

 

      During the 120 days following the receipt of this notice, your landlord may increase your rent only as follows:

      If your rental agreement says that your rent will increase on a particular date and by a definite amount, the landlord may increase the rent as provided in your rental agreement.

      If your rental agreement allows rent increases but does not say that your rent will increase on a particular date and by a definite amount, the landlord may not increase your rent by a percentage that is more than the percentage increase in the general cost of living. An increase in the general cost of living is measured by the percentage increase in the Portland-Salem Consumer Price Index for All Urban Consumers for All Items as reported by the United States Bureau of Labor Statistics.

______________________________________________________________________________

 

      (f) Be hand delivered to the dwelling unit of the tenant or sent to the tenant at the address of the dwelling unit by certified mail, return receipt requested.

      (2) A notice of conversion given under subsection (1) of this section:

      (a) Shall be for the sole purpose of providing the tenant with general information regarding the anticipated cost of acquisition of the unit and estimated monthly expenses.

      (b) Does not obligate the declarant to submit the property to the provisions of this chapter.

      (c) Does not constitute an offer to sell the unit to the tenant or an offer to sell at a particular price.

      (d) Is not a limitation on monthly common expenses or assessments.

      (3) The notice of conversion given under subsection (1) of this section must be delivered to the tenant at least 30 days prior to the presentation of an offer to sell under ORS 100.310 (1) and (2).

      (4) The declarant shall send a copy of the notice of conversion to the mayor of the city in which the conversion condominium is located or, if the conversion condominium is not located in a city, to the county commission or county court.

      (5) A notice of conversion that does not contain the information required by subsection (1)(a) to (e) of this section, or that is not sent to the mayor, county commission or county court as required by subsection (4) of this section, does not begin the 120-day period required by subsection (1) of this section. Notwithstanding any prior delivery of a deficient notice of conversion, the 120-day period required by subsection (1) of this section does not begin until the date a valid notice is delivered. A tenant, mayor, county commission or county court entitled to notice may bring an action for injunctive relief to prevent the conversion until the declarant has complied with the notice requirement.

      (6) The declaration may be recorded prior to the end of the 120-day period required under subsection (1) of this section with the written consent of all tenants who received the notice of conversion less than 120 days before the date of such consent.

      (7) The requirement under subsection (1) of this section to provide a copy of the notice of conversion to new tenants shall not extend the 120-day period nor shall such tenant’s consent be required to record the declaration prior to the end of the 120-day period as provided for under subsection (6) of this section.

      (8) A notice of conversion does not constitute a notice to terminate the tenancy. [Formerly 94.116; 2007 c.705 §1]

 

      100.310 Rights of tenants in conversion. (1) Prior to the sale of any dwelling unit which is to be retained as a unit in the conversion condominium without substantial alteration in its physical layout, the declarant shall first offer to sell the respective unit to the tenant who occupies the unit. The offer shall:

      (a) Terminate 60 days after its receipt or upon written rejection of the offer by the tenant, whichever occurs earlier.

      (b) Be accompanied by a copy of all applicable disclosure statements issued by the Real Estate Commissioner pursuant to ORS 100.700.

      (c) Not constitute a notice to terminate the tenancy.

      (2) The tenant’s dwelling unit may not be shown to any prospective purchasers of a conversion condominium unit without the tenant’s permission before the termination of the tenancy.

      (3) The declarant shall not sell the unit to a person other than the tenant during the 60 days following the termination of an offer to the tenant under subsections (1) and (2) of this section at a price or on terms more favorable to the purchaser than the price or terms offered to the tenant.

      (4) After the property has been submitted to the provisions of the Oregon Condominium Act, the declarant, until a unit is offered for sale in accordance with subsections (1) and (2) of this section, shall notify in writing any prospective tenant, prior to the commencement of the tenancy, that the property has been submitted to the provisions of the Oregon Condominium Act and the rights of a tenant under subsections (1) to (3) of this section. [Formerly 94.122; 1997 c.816 §8]

 

      100.315 Improvements in conversion condominium during notice period. (1) The declarant may not begin improvements or rehabilitation or cause improvements or rehabilitation to be undertaken in a conversion condominium unit without the tenant’s permission during the 120-day notice period prescribed by ORS 100.305 (1).

      (2) The declarant may begin improvements or rehabilitation or cause improvements or rehabilitation to be undertaken in the general common elements during the 120-day notice period. Improvements to or rehabilitation of general common elements may be conducted only between the hours of 8 a.m. and 7 p.m. Unless the declarant and tenant agree otherwise, the declarant must allow each tenant safe and ready ingress to and egress from the tenant’s dwelling unit during the improvement or rehabilitation work.

      (3) A tenant may bring an action against a declarant that violates subsection (2) of this section to recover the greater of actual damages or the equivalent of one month’s dwelling unit rent. [Formerly 94.128; 2007 c.705 §2]

 

      100.320 Authority of city or county to require developer to pay tenant moving expenses. A city or county may adopt an ordinance that requires a declarant to pay the moving expense of a tenant vacating a conversion condominium unit. [Formerly 94.134]

 

ASSOCIATION OF UNIT OWNERS; MANAGEMENT OF PROPERTY; ENCUMBRANCES; CONVEYANCES

 

      100.405 Association of unit owners; powers; granting of interest in common elements; dispute resolution. (1)(a) An association of unit owners shall be organized to serve as a means through which the unit owners may take action with regard to the administration, management and operation of the condominium. The association of a condominium created on or after September 27, 2007, shall be organized as a corporation for profit or nonprofit corporation or, if the condominium consists of not more than four units, excluding units used for parking, storage or other use ancillary to a unit, as an unincorporated association. If the association is incorporated, the name of the association shall include the complete name of the condominium.

      (b) Notwithstanding a provision in the declaration or bylaws of a condominium created before September 27, 2007, that states that the association shall be unincorporated or that requires approval of owners to incorporate as a nonprofit corporation under ORS chapter 65, an unincorporated association may be incorporated as a nonprofit corporation under ORS chapter 65 if the board of directors adopts a resolution that states the association will be incorporated.

      (2) Membership in the association of unit owners shall be limited to unit owners.

      (3) The affairs of the association shall be governed by a board of directors as provided for in the bylaws adopted under ORS 100.410.

      (4) Subject to the provisions of the condominium’s declaration and bylaws, and whether or not the association is unincorporated, the association may:

      (a) Adopt and amend bylaws and rules and regulations;

      (b) Adopt and amend budgets for revenues, expenditures and reserves and levy and collect assessments for common expenses from unit owners;

      (c) Hire and terminate managing agents and other employees, agents and independent contractors;

      (d) Defend against any claims, proceedings or actions brought against it;

      (e) Subject to subsection (11) of this section, initiate or intervene in litigation or administrative proceedings in its own name, and without joining the individual unit owners, in the following:

      (A) Matters relating to the collection of assessments and the enforcement of declarations and bylaws;

      (B) Matters arising out of contracts to which the association is a party;

      (C) Actions seeking equitable or other nonmonetary relief regarding matters that affect the common interests of the unit owners, including but not limited to the abatement of nuisance;

      (D) Matters relating to or affecting common elements, including but not limited to actions for damage, destruction, impairment or loss of use of any common element;

      (E) Matters relating to or affecting the units or interests of unit owners including but not limited to damage, destruction, impairment or loss of use of a unit or portion thereof, if:

      (i) Resulting from a nuisance or a defect in or damage to a common element; or

      (ii) Required to facilitate repair to any common element; and

      (F) Any other matter to which the association has standing under law or pursuant to the declaration, bylaws or any articles of incorporation;

      (f) Make contracts and incur liabilities;

      (g) Regulate the use, maintenance, repair, replacement and modification of common elements;

      (h) Cause additional improvement to be made as a part of the common elements;

      (i) Acquire by purchase, lease, devise, gift or voluntary grant real or personal property or any interest therein and take, hold, possess and convey real or personal property or any interest therein;

      (j) Impose and receive any payments, fees or charges for the use, rental or operation of the common elements;

      (k) Impose charges for late payments of assessments, attorney fees for collection of assessments and, after giving written notice and an opportunity to be heard, levy reasonable fines for violations of the declaration, bylaws and rules and regulations of the association, provided that the charge imposed or fine levied by the association is based:

      (A) On a schedule contained in the declaration or bylaws, or an amendment to either that is delivered to each unit, mailed to the mailing address of each unit or mailed to the mailing addresses designated in writing by the owners; or

      (B) On a resolution adopted by the board of directors or the association that is delivered to each unit, mailed to the mailing address of each unit or mailed to the mailing addresses designated by the owners in writing;

      (L) Adopt rules regarding the termination of utility services paid for out of assessments of the association and access to and use of recreational and service facilities available to unit owners that must provide for written notice and an opportunity to be heard before the association may terminate the rights of any owners to receive such benefits or services until the correction of any violation covered by the rule has occurred;

      (m) Impose reasonable charges for the preparation and recordation of amendments to the declaration or statements of assessments;

      (n) Assign its right to future income, including the right to receive common expense assessments;

      (o) Provide for the indemnification of its officers and executive board, as may be limited by ORS 61.218 (3)(d) (1987 Replacement Part), and maintain directors’ and officers’ liability insurance;

      (p) Exercise any other powers conferred by the declaration or bylaws;

      (q) Exercise all other powers that may be exercised in this state by any such association; and

      (r) Exercise any other powers determined by the association to be necessary and proper for the governance and operation of the association.

      (5) Subject to subsection (6) of this section, unless expressly limited or prohibited by the declaration, the association has the authority to grant, execute, acknowledge and deliver on behalf of the unit owners leases, easements, rights of way, licenses and other similar interests affecting the general common elements and consent to vacation of roadways within and adjacent to the condominium.

      (6)(a)(A) Except as provided in subparagraph (B) of this paragraph, the granting of a lease, easement, right of way, license or other similar interest pursuant to subsection (5) of this section shall be first approved by at least 75 percent of owners. Unit owner approval may be solicited by any means the board of directors determines is reasonable and need not be at a meeting of the association.

      (B) Unless the declaration otherwise provides:

      (i) The granting of a lease, easement, right of way, license or other similar interest affecting the general common elements for a term of two years or less shall require the approval of a majority of the board of directors.

      (ii) The granting of a lease, easement, right of way, license or other similar interest affecting the general common elements for a term of more than two years to a public body, as defined in ORS 174.109, or to a utility or a communications company for installation and maintenance of power, gas, electric, water or other utility and communication lines and services requires the approval of a majority of the board of directors.

      (iii) The granting of a lease, easement, license or other similar interest to an owner for the exclusive use of a part of the general common elements to which the owner’s unit provides primary access requires the approval of a majority of the board of directors. If the approval by the board of directors includes the right of the owner to make improvements to the general common elements to which the owner is being granted exclusive use, ORS 100.535 applies to the general common elements to the same extent that ORS 100.535 applies to a unit, including the right of the board under ORS 100.535 to require an owner, at owner’s expense, to submit an opinion of a registered architect or registered professional engineer that the proposed improvement will not impair the structural integrity or mechanical systems of the condominium.

      (b) Unless the declaration otherwise provides, the consent to vacation of roadways within and adjacent to the condominium must be approved first by at least a majority of unit owners present voting in person or by proxy at a duly constituted meeting of the association called for the purpose.

      (7) The instrument granting an interest or consent pursuant to subsection (5) of this section shall be executed by the chairperson and secretary of the association and acknowledged in the manner provided for acknowledgment of such instruments by such officers and shall state that such grant or consent was approved, if appropriate, by at least the percent of owners required under subsection (6) of this section.

      (8) Unless expressly prohibited by the declaration, any action permitted under subsections (5) and (6) of this section regarding a general common element may be taken with respect to any limited common element, provided that the owner of the unit to which the use of the limited common element is reserved and the holder of any mortgage or trust deed affecting the unit consent to the action and also execute an instrument as provided under subsection (7) of this section.

      (9) Except as otherwise provided in the association’s declaration or bylaws, the board of directors of the association may modify, close, remove, eliminate or discontinue the use of a general common element facility or improvement or portion of the common element landscaping, regardless of whether such facility, improvement or landscaping is mentioned in the declaration or shown on the plat provided that:

      (a) Nothing in this subsection shall be construed as limiting the authority of the board of directors, in its discretion, to seek approval of such modification, closure, removal, elimination or discontinuance by the unit owners; and

      (b) Modification, closure, removal, elimination or discontinuance other than on a temporary basis of any swimming pool, spa or recreation or community building must be approved by at least a majority of the unit owners voting on such matter at a meeting or by written ballot held in accordance with the declaration, bylaws or ORS 100.425.

      (10)(a) A permit or authorization issued by the board of directors pursuant to authority granted to the board under law, the declaration or the bylaws, may be recorded in the deed records of the county where the condominium is located. An instrument recorded under this subsection shall:

      (A) Include the name of the condominium and a reference to where the declaration and any applicable supplemental declarations are recorded;

      (B) Identify, by the designations stated in the declaration or applicable supplemental declaration, all affected units and common elements;

      (C) Include such other information and signatures as may be required by law, under the declaration or bylaws or as the board of directors may desire; and

      (D) Be executed by the chairperson and secretary of the association and acknowledged in the manner provided for acknowledgment of such instruments by the officers.

      (b) The board of directors may record an amendment, modification, termination or other instrument relating to the permit or authorization described in this subsection. Any such instrument shall include a reference to the location of the recorded instrument and be executed by the chairperson and secretary of the association and acknowledged in the manner provided for acknowledgment of such instruments.

      (11)(a) Subject to paragraph (f) of this subsection, before initiating litigation or an administrative proceeding in which the association and an owner have an adversarial relationship, the party that intends to initiate litigation or an administrative proceeding shall offer to use any dispute resolution program available within the county in which the condominium is located that is in substantial compliance with the standards and guidelines adopted under ORS 36.175. The written offer must be hand-delivered or mailed by certified mail, return receipt requested, to the address, contained in the records of the association, for the other party.

      (b) If the party receiving the offer does not accept the offer within 10 days after receipt by written notice hand-delivered or mailed by certified mail, return receipt requested, to the address, contained in the records of the association, for the other party, the initiating party may commence the litigation or the administrative proceeding. The notice of acceptance of the offer to participate in the program must contain the name, address and telephone number of the body administering the dispute resolution program.

      (c) If a qualified dispute resolution program exists within the county in which the condominium is located and an offer to use the program is not made as required under paragraph (a) of this subsection, litigation or an administrative proceeding may be stayed for 30 days upon a motion of the noninitiating party. If the litigation or administrative action is stayed under this paragraph, both parties shall participate in the dispute resolution process.

      (d) Unless a stay has been granted under paragraph (c) of this subsection, if the dispute resolution process is not completed within 30 days after receipt of the initial offer, the initiating party may commence litigation or an administrative proceeding without regard to whether the dispute resolution is completed.

      (e) Once made, the decision of the court or administrative body arising from litigation or an administrative proceeding may not be set aside on the grounds that an offer to use a dispute resolution program was not made.

      (f) The requirements of this subsection do not apply to circumstances in which irreparable harm to a party will occur due to delay or to litigation or an administrative proceeding initiated to collect assessments, other than assessments attributable to fines. [Formerly 94.146; 1997 c.816 §9; 1999 c.677 §47; 2001 c.756 §39; 2003 c.569 §28; 2007 c.410 §11]

 

      Note: Section 29, chapter 569, Oregon Laws 2003, provides:

      Sec. 29. Unless the declaration of a condominium recorded before July 14, 2003, expressly limits or prohibits the authority of the association of unit owners to grant, execute, acknowledge and deliver on behalf of the unit owners leases, easements, rights of way, licenses and other similar interests affecting the general common elements and consent to vacation of roadways within and adjacent to the condominium pursuant to ORS 100.405 (6) in effect at the time the declaration was recorded, the amendments to ORS 100.405 (6) by section 28, chapter 569, Oregon Laws 2003, apply to the authority of the association of unit owners of a condominium recorded before July 14, 2003, except for the limitation or prohibition on the authority of the association under this section. [2003 c.569 §29; 2007 c.410 §12]

 

      100.407 Annual and special meetings of association. (1) The association of unit owners shall hold at least one meeting of the owners each calendar year.

      (2)(a) Special meetings of the association may be called by the chairperson of the board of directors, by a majority of the board of directors or by the chairperson or secretary upon receipt of a written request of a percentage of unit owners specified in the bylaws. However, the bylaws may not require a percentage greater than 50 percent or less than 10 percent of the unit owners for the purpose of calling a meeting.

      (b) If the bylaws do not specify a percentage of unit owners that may request the calling of a special meeting, a special meeting shall be called if 30 percent or more of the unit owners make the request in writing. Notice of the special meeting shall be given as specified in this section.

      (3) If the unit 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 chairperson or the secretary, a unit 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)(a) Not less than 10 nor more than 50 days before any meeting called under this section, the secretary or other officer of the association specified in the bylaws shall cause the notice to be hand delivered or mailed to the mailing address of each unit owner or to the mailing address designated in writing by the unit owner, and to all mortgagees that have requested the notice.

      (b) The notice 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 of the association.

      (c) Mortgagees may designate a representative to attend a meeting called under this section. [1999 c.677 §59; 2003 c.569 §30; 2007 c.409 §25]

 

      Note: 100.407 and 100.408 were added to and made a part of ORS chapter 100 by legislative action but were not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation.

 

      100.408 Quorum for meeting of association. (1) Unless the bylaws provide otherwise, a quorum for any meeting of the association of unit owners consists of the number of persons who are entitled to cast 20 percent of the voting rights and who are present in person, by proxy or by absentee ballot, if absentee ballots are permitted by the board of directors, at the beginning of the meeting.

      (2) If any meeting of the association of unit owners cannot be organized because of a lack of a quorum, the unit owners who are present, either in person or by proxy, may adjourn the meeting. The quorum for a subsequent meeting is the greater of:

      (a) One-half of the quorum required in the bylaws; or

      (b) The quorum required in subsection (1) of this section. [1999 c.677 §60; 2007 c.409 §26]

 

      Note: See note under 100.407.

 

      100.409 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 §58]

 

      Note: 100.409 was added to and made a part of ORS chapter 100 by legislative action but was not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation.

 

      100.410 Adoption of bylaws; recording; amendment; approval by commissioner; fee. (1) The declarant shall adopt on behalf of the association of unit owners the initial bylaws that govern the administration of the condominium. The bylaws shall be recorded simultaneously with the declaration as an exhibit or as a separate instrument.

      (2) Unless otherwise provided in the declaration or bylaws, amendments to the bylaws may be proposed by a majority of the board of directors or by at least 30 percent of the owners.

      (3) Subject to subsections (4) and (5) of this section and ORS 100.415 (1)(t), an amendment of the bylaws is not effective unless the amendment is:

      (a) Approved by at least a majority of the unit owners; and

      (b) Certified by the chairperson and secretary of the association of unit owners as being adopted in accordance with the bylaws and the provisions of this section, acknowledged in the manner provided for acknowledgment of instruments and recorded.

      (4) In condominiums that are exclusively residential:

      (a) The bylaws may not provide that greater than a majority of the unit owners is required to amend the bylaws except for amendments relating to age restrictions, pet restrictions, limitations on the number of persons who may occupy units and limitations on the rental or leasing of units.

      (b) An amendment relating to a matter specified in paragraph (a) of this subsection is not effective unless approved by at least 75 percent of the owners or a greater percentage specified in the bylaws.

      (5) The bylaws may not be amended to limit or diminish any special declarant right without the consent of the declarant. However, the declarant may waive the declarant’s right of consent.

      (6)(a) For five years after the recording of the initial bylaws, before any amended bylaw may be recorded, the amended bylaw must be approved by the Real Estate Commissioner. The commissioner shall approve such amendment if the requirements of ORS 100.415 and this section have been satisfied.

      (b) The approval by the commissioner under paragraph (a) of this subsection is not required for bylaws restated under subsection (10) of this section unless the bylaws are restated during the five-year period after the recording of the initial bylaws.

      (c) If the amended bylaw approved by the commissioner under this subsection is not recorded as required in subsection (3) of this section within two years from the date of approval by the commissioner, the approval automatically expires and the amended bylaw must be resubmitted for approval as provided in this section. The commissioner’s approval shall set forth the date on which the approval expires.

      (7) Before the commissioner approves amended bylaws or restated bylaws under this section, the person submitting the amended bylaws or restated bylaws shall pay to the commissioner the fee provided by ORS 100.670.

      (8) Notwithstanding a provision in the bylaws, including bylaws adopted prior to July 14, 2003, that requires an amendment to be executed, or executed and acknowledged, by all owners approving the amendment, amendments to the bylaws under this section become effective after approval by the owners if executed and certified on behalf of the association by the chairperson and secretary in accordance with subsection (3)(b) of this section.

      (9) An amendment to the bylaws must be conclusively presumed to have been regularly adopted in compliance with all applicable procedures relating to the amendment unless an action is brought within one year after the effective date of the amendment or the face of the amendment indicates that the amendment received the approval of fewer votes than required for the approval. Nothing in this subsection prevents the further amendment of an amended bylaw.

      (10)(a) The board of directors, by resolution and without the further approval of unit owners, may cause restated bylaws to be prepared and recorded to codify individual amendments that have been adopted in accordance with this section.

      (b) Bylaws restated under this subsection must:

      (A) Include all previously adopted amendments that are in effect, state that the amendments were approved by the commissioner as required under this section and state that no other changes were made except, if applicable, to correct scriveners’ errors or to conform format and style;

      (B) Include a statement that the board of directors has adopted a resolution in accordance with paragraph (a) of this subsection and is causing the bylaws to be restated and recorded under this subsection;

      (C) Include a reference to the recording index numbers and date of recording of the initial bylaws and all previously recorded amendments that are in effect and are being codified;

      (D) Include a certification by the chairperson and secretary of the association that the restated bylaws include all previously adopted amendments that are in effect, that amendments were approved by the commissioner if required under this section and that no other changes were made except, if applicable, to correct scriveners’ errors or to conform format and style;

      (E) Be executed and acknowledged by the chairperson and secretary of the association and recorded in the deed records of each county in which the condominium is located; and

      (F) If required under subsection (6) of this section, be approved by the commissioner.

      (c) The board of directors shall cause a copy of the recorded restated bylaws, including the recording information, to be filed with the commissioner. [Formerly 94.152; 2001 c.756 §40; 2003 c.569 §31; 2005 c.22 §76; 2007 c.409 §34; 2007 c.410 §13]

 

      100.412 Annual budget; distribution of budget summary to owners. (1) The board of directors at least annually shall adopt a budget for the association of unit owners.

      (2) The budget shall include moneys required to be allocated to the reserve account under ORS 100.175.

      (3) Within 30 days after adopting the annual budget for the association, the board of directors shall provide a summary of the budget to all owners.

      (4) If the board of directors fails to adopt an annual budget, the last adopted budget shall continue in effect. [1999 c.677 §58; 2007 c.409 §26a]

 

      Note: 100.412 was added to and made a part of ORS chapter 100 by legislative action but was not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation.

 

      100.415 Contents of bylaws. (1) The bylaws shall include a reference to the declaration to which the bylaws relate and shall provide for:

      (a) The organization of the association of unit owners in accordance with ORS 100.405, when the initial meeting shall be held and the method of calling that meeting.

      (b) If required under ORS 100.205, the formation of a transitional committee in accordance with such section.

      (c) The turnover meeting required under ORS 100.210, including when the meeting shall be called, the method of calling the meeting, the right of a unit owner under ORS 100.210 (3) to call the meeting and a statement of the purpose of the meeting.

      (d)(A) The method of calling the annual meeting and all other meetings of the unit owners in accordance with ORS 100.407; and

      (B) The percentage of owners that constitutes a quorum.

      (e)(A) The election from among the unit owners of a board of directors and the number of persons constituting the board;

      (B) The terms of office of directors;

      (C) The powers and duties of the board;

      (D) The compensation, if any, of the directors;

      (E) The method of removal from office of directors; and

      (F) The method of filling vacancies on the board.

      (f) The method of calling meetings of the board of directors in accordance with ORS 100.420 and a statement that all meetings of the board of directors of the association of unit owners shall be open to unit owners.

      (g) The election of a chairperson, a secretary, a treasurer and any other officers of the association.

      (h) The preparation and adoption of a budget in accordance with ORS 100.412.

      (i)(A) The maintenance, repair and replacement of the common elements and association property;

      (B) Payment for the expense of maintenance, repair and replacement of common elements and association property and other expenses of the condominium in accordance with ORS 100.530; and

      (C) The method of approving payment vouchers.

      (j) The employment of personnel necessary for the maintenance and repair of the common elements.

      (k) The manner of collecting assessments from the unit owners.

      (L) Insurance coverage in accordance with ORS 100.435 and the responsibility for payment of the amount of the deductible in an association insurance policy.

      (m) The preparation and distribution of the annual financial statement in accordance with ORS 100.480.

      (n) The reserve account and the preparation, review and update of the reserve study and the maintenance plan required under ORS 100.175.

      (o) The filing of an Annual Report and any amendment with the Real Estate Agency in accordance with ORS 100.250.

      (p) The method of adopting and of amending administrative rules and regulations governing the details of the operation of the condominium and use of the common elements.

      (q) Restrictions on and requirements respecting the enjoyment and maintenance of the units and the common elements as are designed to prevent unreasonable interference with the use of their respective units and of the common elements by the several unit owners.

      (r) Any restrictions on use or occupancy of units. Any such restrictions created by documents other than the bylaws may be incorporated by reference in the bylaws to the official records of the county in which the property is located.

      (s) The method of amending the bylaws in accordance with ORS 100.410.

      (t) Any other details regarding the property that the declarant considers desirable. However, if a provision required to be in the declaration under ORS 100.105 is included in the bylaws, the voting requirements for amending the declaration shall also govern the amendment of the provision in the bylaws.

      (u) In the event additional units are proposed to be annexed or created pursuant to ORS 100.125 or 100.150, the method of apportioning common expenses in the event new units are added during the course of the fiscal year.

      (2) The bylaws may provide that the responsibility for payment of the amount of the deductible may be prescribed by resolution adopted by the board of directors. [Formerly 94.158; 1995 c.31 §12; 1999 c.677 §48; 2001 c.756 §41; 2007 c.409 §30]

 

      100.417 Board of directors of association; powers and duties. (1) The board of directors of an association of unit owners may act on behalf of the association except as limited by the declaration or bylaws. In the performance of their duties, officers and members of the board of directors shall be governed by this section and the applicable provisions of ORS 65.357, 65.361, 65.367, 65.369 and 65.377 whether or not the association is incorporated under ORS chapter 65.

      (2) Unless otherwise provided in the bylaws, the board of directors of an association may fill vacancies in its membership for the unexpired portion of any term.

      (3) At least annually, the board of directors of an association shall review the insurance coverage of the association.

      (4) The board of directors of the association annually shall cause to be filed the necessary income tax returns for the association.

      (5) The board of directors of the association may record a statement of association information as provided in ORS 94.667.

      (6) The board of directors, in the name of the association, shall maintain a current mailing address.

      (7) The board of directors shall cause to be maintained and kept current the information required to enable the association to comply with ORS 100.480 (10).

      (8) Unless otherwise provided in the declaration or bylaws:

      (a) The unit owners may remove any member of the board of directors of the association, other than members appointed by the declarant or persons who are ex officio directors, with or without cause, by a majority vote of all owners present and entitled to vote at any meeting of the owners at which a quorum is present.

      (b) Removal of a member of the board of directors is not effective unless the matter of removal is an item on the agenda and stated in the notice for the meeting required under ORS 100.407. [1999 c.677 §63; 2001 c.756 §42; 2003 c.569 §32]

 

      Note: 100.417 was added to and made a part of ORS chapter 100 by legislative action but was not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation.

 

      100.418 Receivership for failure of association to fill vacancies on board of directors. (1) Subject to subsection (2) of this section, if an association of unit owners fails to fill vacancies on the board of directors sufficient to constitute a quorum in accordance with the bylaws, a unit owner or a first mortgagee of a unit may request the circuit court of the county in which the condominium is located to appoint a receiver under ORCP 80 to manage the affairs of the association.

      (2) At least 45 days before a unit owner or first mortgagee of a unit requests the circuit court to appoint a receiver under subsection (1) of this section, the unit 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 unit owners of the proposed action.

      (3) The notice shall be signed by the unit owner or first mortgagee of the unit 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 unit 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 100.210 the unit 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, a unit owner shall give the notice to all other unit 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 §19]

 

      Note: 100.418, 100.419 and 100.423 were added to and made a part of ORS chapter 100 by legislative action but were not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation.

 

      100.419 Assent of director to board action. (1) A director of an association of unit owners 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 §22]

 

      Note: See note under 100.418.

 

      100.420 Board meetings; executive sessions. (1)(a) All meetings of the board of directors of the association of unit owners shall be open to unit owners except that, in the discretion of the board, the following matters may be considered 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, as precisely as possible, when and under what circumstances the deliberations can be disclosed to owners. The statement, motion or decision to meet in executive session must be included in the minutes of the meeting.

      (c) A contract or an action considered in executive session does not become effective unless the board of directors, following the executive session, reconvenes in open meeting and votes on the contract or action, which must be reasonably identified in the open meeting and included in the minutes.

      (d) The meeting and notice requirements in this section may not be circumvented by chance or social meetings or by any other means.

      (2) Except as provided in subsection (3) of this section, board of directors’ meetings may be conducted by telephonic communication or by the use of a means of communication that allows all members of the board of directors participating to hear each other simultaneously or otherwise to be able to communicate during the meeting. A member of the board of directors participating in a meeting by this means is deemed to be present in person at the meeting.

      (3) In condominiums where the majority of the units are the principal residences of the occupants, meetings of the board of directors shall comply with the following:

      (a) For other than emergency meetings, notice of board of directors’ meetings shall be posted at a place or places on the property at least three days prior to the meeting or notice shall be provided by a method otherwise reasonably calculated to inform unit owners of such meetings.

      (b) Only emergency meetings of the board of directors may be conducted by telephonic communication or in a manner described in subsection (2) of this section.

      (4) Subsection (3)(a) of this section first applies to property submitted to the provisions of this chapter prior to October 3, 1979, upon receipt by the board of directors of the association of unit owners of a written request from at least one unit owner that notice of board of directors meetings be given in accordance with subsection (3)(a) of this section.

      (5) As used in this section, “meeting” means a convening of a quorum of members of the board of directors where matters relating to 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. [Formerly 94.164; 1999 c.677 §49; 2001 c.756 §43; 2003 c.569 §33]

 

      100.423 Electronic notice to owner or director. (1) Subject to subsection (2) of this section and notwithstanding any requirement under the declaration or bylaws or this chapter, in the discretion of the board of directors of the association of unit owners, any notice, information or other written material required to be given to a unit owner or director under the declaration or bylaws or this chapter, may be given by electronic mail, facsimile or other form of electronic communication acceptable to the board of directors.

      (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 100.450;

      (c) An action the association may take against a unit owner; or

      (d) An offer to use the dispute resolution program under ORS 100.405.

      (3) A unit 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 this chapter. [2007 c.409 §20]

 

      Note: See note under 100.418.

 

      100.425 Use of written ballot for approving or rejecting matters subject to meeting of unit owners; procedures; exceptions. (1) Unless prohibited or limited by the declaration, articles of incorporation or bylaws, any action that may be taken at any annual, regular or special meeting of the association of unit owners 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) The turnover meeting required under ORS 100.210.

      (b) The annual meeting of an association if more than a majority of the units 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 unit owners under ORS 100.407 (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 a unit owner if the consent or approval of that unit owner is required by the declaration or bylaws or this chapter.

      (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 return of ballots has passed, a quorum of unit owners has voted and the required percentage of approving votes has been received. Otherwise, the proposal shall be deemed to be rejected; and

      (b) If approval of a proposed action otherwise would require a meeting at which a specified percentage of unit 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 unit 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 unit 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, articles of incorporation 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 unit owners before the end of the specified date certain.

      (6) Except as otherwise provided in the declaration, articles of incorporation 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, articles of incorporation 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, 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. [1997 c.816 §17; 2001 c.756 §44; 2003 c.569 §34; 2007 c.409 §27]

 

      Note: 100.425 was added to and made a part of ORS chapter 100 by legislative action but was not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation.

 

      100.427 Methods of voting. (1) The voting rights or consent of a unit owner may be cast or given:

      (a) In person at a meeting of the association of unit owners.

      (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 this chapter 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 100.425.

      (e) By any other method specified by the declaration or bylaws or this chapter.

      (2)(a) A proxy:

      (A) Must be dated and signed by the unit 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) A unit 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 of unit owners or to the board of directors if a vote is being conducted by written ballot in lieu of a meeting pursuant to ORS 100.425.

      (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 a unit owner present for the purpose of establishing a quorum.

      (d) Even if an absentee ballot has been delivered to a unit owner, the unit owner may vote in person at a meeting if the unit 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. [1999 c.677 §61; 2003 c.569 §35; 2007 c.409 §28]

 

      Note: 100.427 was added to and made a part of ORS chapter 100 by legislative action but was not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation.

 

      100.428 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 an association of unit owners, in the board’s discretion, may provide that a vote, approval or consent of a unit 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 this chapter.

      (4) An electronic ballot may be accompanied by or contained in an electronic notice in accordance with ORS 100.423.

      (5) If an electronic ballot is posted on a website, a notice of the posting shall be sent to each unit 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 100.425 if the vote conducted by written ballot under ORS 100.425 uses the procedures specified in ORS 100.425 (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 §21]

 

      Note: 100.428 was added to and made a part of ORS chapter 100 by legislative action but was not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation.

 

      100.430 Unit deeds; contents. The deed of a unit shall contain:

      (1) The name of the property, and the recording index numbers and date of recording of the declaration and in the case of a staged or flexible condominium, the applicable supplemental declaration or declaration amendment.

      (2) The unit designation of the unit.

      (3) Any further details the grantor and grantee may consider desirable. [Formerly 94.171]

 

      100.435 Insurance for individual units and common elements. (1) If the bylaws provide that the association of unit owners has the sole authority to decide whether to repair or reconstruct a unit that has suffered damage or that a unit must be repaired or reconstructed, the board of directors shall obtain and maintain at all times and shall pay for out of the common expense funds, the following insurance covering both the common elements and individual units:

      (a) Property insurance including, but not limited to, fire, extended coverage, vandalism and malicious mischief; and

      (b) Insurance covering the legal liability of the association of unit owners, the unit owners individually and the manager including, but not limited to, the board of directors, the public and the unit owners and their invitees or tenants, incident to ownership, supervision, control or use of the property. There may be excluded from the policy required under this paragraph, coverage of a unit owner, other than coverage as a member of the association of unit owners or board of directors, for liability arising out of acts or omissions of that unit owner and liability incident to the ownership or use of the part of the property as to which that unit owner has the exclusive use or occupancy. Liability insurance required under this paragraph shall be issued on a comprehensive liability basis and shall provide a cross liability indorsement providing that the rights of a named insured under the policy do not prejudice any action against another named insured.

      (2) If the bylaws require the individual unit owners to obtain insurance for their units, the bylaws also shall contain a provision requiring the board of directors to obtain the following insurance covering the common elements:

      (a) Property insurance including, but not limited to, fire, extended coverage, vandalism and malicious mischief; and

      (b) Insurance covering the legal liability of the association of unit owners and the manager including, but not limited to, the board of directors, to the public or the unit owners and their invitees or tenants, incident to supervision, control or use of the property.

      (3) The board of directors shall obtain, if reasonably available, terms in insurance policies under this section that provide a waiver of subrogation by the insurer as to any claims against the board of directors of the association.

      (4) Notwithstanding a provision in the declaration or bylaws of a condominium, including a condominium created before September 27, 2007, that imposes a maximum deductible amount of $10,000 or less in an association insurance policy, if the board of directors determines that it is in the best interest of the association of unit owners and of the unit 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) If the declaration or bylaws of a condominium created before September 27, 2007, do not assign the responsibility for payment of the amount of the deductible in an association insurance policy, the board of directors 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) A unit owner or the unit owners affected by a loss; or

      (B) All unit owners;

      (b) The allocation of the deductible charged under paragraph (a) of this subsection; and

      (c) If a unit owner and the association have duplicate insurance coverage, the insurance policy that is primary, unless otherwise provided in the declaration or bylaws.

      (7) If the board of directors adopts a resolution described in subsection (6) of this section, the resolution may require that a unit owner, in addition to any other insurance required by the declaration or bylaws, obtain and maintain:

      (a) An insurance policy that insures the unit owner’s unit and appurtenant limited common elements for not less than the amount of the deductible in the association’s insurance policy for which the unit owner may be responsible and that insures the unit 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 unit owners and tenants, guests of unit owners and tenants and occupants of other units for damage to the general and limited common elements, to other units and to the personal property of other persons that is located in other units or the common elements.

      (8) 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.

      (9) Not later than 10 days after adoption of a resolution under subsection (4), (6) or (8) of this section, the board of directors shall ensure that a copy of the resolution and a notice described in subsection (10) of this section are:

      (a) Delivered to each unit owner; or

      (b) Mailed to the mailing address of each unit owner or to the mailing address designated in writing by the unit owner.

      (10) The notice required under subsection (9) of this section shall:

      (a) Advise the unit owner to contact the unit owner’s insurance agent to determine the effect of the resolution on the unit owner’s individual insurance coverage; and

      (b) Be in a form and style reasonably calculated to inform the unit owner of the importance of the notice.

      (11) Failure to provide a copy of a resolution or a notice required under this section does not affect the responsibility of a unit owner to comply with a resolution adopted under this section. [Formerly 94.177; 1999 c.677 §50; 2007 c.409 §31]

 

      100.440 Liens against property; removal from lien; effect of part payment. (1) Subsequent to recording a declaration and while the property remains subject to this chapter, no lien shall arise or be effective against the property. During such period liens or encumbrances shall arise or be created only against each unit and the undivided interest in the common elements appertaining thereto, in the same manner and under the same conditions as liens or encumbrances may arise or be created upon or against any other separate parcel of real property subject to individual ownership.

      (2) No labor performed or materials furnished with the consent or at the request of a unit owner, the agent, contractor or subcontractor of the unit owner, shall be the basis for the filing of a mechanic’s or materialman’s lien against the unit of any other unit owner not consenting to or requesting the labor to be performed or the materials to be furnished, except that consent shall be considered given by the owner of any unit in the case of emergency repairs thereto performed or furnished with the consent or at the request of the board of directors.

      (3) If a lien becomes effective against two or more units, the owner of each unit subject to such a lien shall have the right to have the unit of the owner released from the lien by payment of the amount of the lien attributable to the unit. The amount of the lien attributable to a unit and the payment required to satisfy such a lien, in the absence of agreement, shall be determined by application of the allocation established in the declaration. Such partial payment, satisfaction or discharge shall not prevent the lienor from proceeding to enforce the rights of the lienor against any unit and the undivided interest in the common elements appertaining thereto not so released by payment, satisfaction or discharge. [Formerly 94.185]

 

      100.445 Independent default clauses; option to purchase fee simple interest. Where a leasehold interest is submitted to the provisions of this chapter, the master lease shall:

      (1) Contain independent default clauses, the effect of which shall be that a unit owner cannot be evicted because the board of directors of the association of unit owners has defaulted so long as the unit owner has paid the pro rata share of the unit owner of the funds necessary to correct the default or because another unit owner has defaulted.

      (2) Contain the procedure for the submission of the fee simple interest in the property to the condominium if the lease includes an option for the unit owners to purchase the fee simple interest.

      (3) Be recorded in the office of the recording officer before the declaration for the property is recorded in accordance with ORS 100.100. [Formerly 94.190; 2001 c.756 §45]

 

      100.450 Association lien against individual unit; recording notice of claim; foreclosure; priority of lien. (1) Whenever an association of unit owners levies any assessment against a unit, the association of unit owners shall have a lien upon the individual unit and the undivided interest in the common elements appertaining to such unit for any unpaid assessments. The lien includes interest, late charges, attorney fees, costs or other amounts levied under the declaration or bylaws. The lien is prior to a homestead exemption and all other liens or encumbrances upon the unit except:

      (a) Tax and assessment liens; and

      (b) A first mortgage or trust deed of record unless:

      (A) The condominium consists of fewer than seven units, all of which are to be used for nonresidential purposes;

      (B) The declaration provides that the lien of any mortgage or trust deed of record affecting the property shall be subordinate to the lien of the association provided under subsection (1) of this section; and

      (C) The holder of any mortgage or trust deed of record affecting the property when the declaration is recorded executes a separate subordination of the holder’s interest to the declaration which is attached as an exhibit and which states that the holder understands that the declaration subordinates the holder’s lien to the assessment lien of the association provided under subsection (1) of this section.

      (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 the unit 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 unit, or reputed owner, if known;

      (c) The name of the condominium and the designation of the unit as stated in the declaration or applicable supplemental declaration; and

      (d) A statement that if the owner of the unit 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 of unit owners.

      (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.

      (d) An action to foreclose a lien under this section or recover a money judgment for unpaid assessments may not be maintained unless the Condominium Information Report and the Annual Report described in ORS 100.250 are designated current as provided in ORS 100.255.

      (5) Unless the declaration or bylaws provides otherwise, fees, late charges, fines and interest imposed pursuant to ORS 100.405 (4)(j), (k), (L) and (m) are enforceable as assessments under this section.

      (6) With respect to condominium units also constituting timeshare property as defined by ORS 94.803, liens created by this section shall be assessed to the timeshare owners in the timeshare property according to the method for determining each owner’s liability for common expenses under the timeshare instrument and shall be enforced individually against each timeshare owner in the condominium unit.

      (7) Notwithstanding the priority established for a lien for unpaid assessments and interest under subsection (1) of this section, the lien shall also be prior to the lien of a first mortgage or trust deed of record for the unit and the undivided interest in the common elements, if:

      (a) The association of unit owners for the condominium in which the unit is located has given the lender under the mortgage or trust deed 90 days prior written notice that the owner of the unit is in default in payment of an assessment. The notice shall contain:

      (A) Name of borrower;

      (B) Recording date of trust deed or mortgage;

      (C) Recording information;

      (D) Name of condominium, unit owner and unit designation stated in the declaration or applicable supplemental declaration; and

      (E) Amount of unpaid assessment.

      (b) The notice under paragraph (a) of this subsection shall set forth the following in 10-point type:

______________________________________________________________________________

 

      NOTICE: The lien of the association may become prior to that of the lender pursuant to ORS 100.450.

______________________________________________________________________________

 

      (c) The lender has not initiated judicial action to foreclose the mortgage or requested issuance of a trustee’s notice of sale under the trust deed or accepted a deed in lieu of foreclosure in the circumstances described in ORS 100.465 prior to the expiration of 90 days following the notice by the unit owners’ association.

      (d) The unit owners’ association has provided the lender, upon request, with copies of any liens filed on the unit, a statement of the assessments and interest remaining unpaid on the unit and other documents which the lender may reasonably request.

      (e) The borrower is in default under the terms of the mortgage or trust deed as to principal and interest.

      (f) A copy of the notice described in paragraph (a) of this subsection, together with an affidavit of notice by a person having knowledge of the facts, has been recorded in the manner prescribed in subsection (3) of this section. The affidavit shall recite the date and the person to whom the notice was given. [Formerly 94.195; 1995 c.31 §13; 1997 c.816 §10; 1999 c.59 §18; 1999 c.677 §71; 2001 c.104 §31; 2003 c.569 §36]

 

      100.460 Foreclosure against unit; receiver for unit; power of board of directors to bid at foreclosure sale. In any foreclosure suit against a unit, the unit owner shall be required to pay a reasonable rental for the unit, if so provided in the bylaws, and the plaintiff in such foreclosure shall be entitled to the appointment of a receiver to collect the rent. The board of directors, acting on behalf of the unit owners, shall have power, unless prohibited by the declaration, to bid in the unit at the foreclosure sale, and to acquire and hold, lease, mortgage and convey the same. [Formerly 94.202]

 

      100.465 Circumstances in which deed in lieu of foreclosure extinguishes lien. Unless the declarations or bylaws otherwise provide, a deed in lieu of foreclosure accepted by the holder of a first mortgage or the beneficiary of a first deed of trust in respect to a condominium unit shall have the effect of extinguishing a lien of the association securing unpaid assessments through the date of recording of the deed in lieu of foreclosure in the following circumstances:

      (1) Written notice has been given to the association, addressed to the individual authorized to accept service of process sent by first class mail, return receipt requested, notifying the association of the mortgagee or beneficiary’s intent to accept a deed in lieu of foreclosure and stating that the lien of the association may be extinguished in the circumstances specified in this section; and

      (2) The deed in lieu of foreclosure is recorded not later than 30 days after the date the notice is mailed to the association. [1989 c.595 §36; 2003 c.569 §36a]

 

      Note: 100.465 and 100.470 were added to and made a part of ORS 100.005 to 100.910 by legislative action but were not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation.

 

      100.470 Lien foreclosure; other legal action by declarant, association or owner; attorney fees. In any suit or action brought by an association of unit owners to foreclose its lien or to collect delinquent assessments or in any suit or action brought by declarant, the association or any owner or class of owners to enforce compliance with the terms and provisions of the Oregon Condominium Act, the condominium 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. [1989 c.595 §37; 2001 c.756 §46; 2007 c.409 §29]

 

      Note: See note under 100.465.

 

      100.475 Personal liability for assessment; joint liability of grantor and grantee following conveyance; limitation.       (1) A unit owner shall be personally liable for all assessments imposed on the unit owner or assessed against the unit by the association of unit owners.

      (2) Where the purchaser of a unit obtains title to the unit as a result of foreclosure of the first mortgage or trust deed, such purchaser, the successors and assigns of the purchaser, shall not be liable for any of the assessments against such unit or its owner which became due prior to the acquisition of title to such unit by such purchaser except as specifically provided otherwise in ORS 100.450. Such unpaid assessments shall be a common expense of all the unit owners including such purchaser, the successors and assigns of the purchaser.

      (3)(a) Subject to paragraph (b) of this subsection, in a voluntary conveyance of a unit, the grantee shall be jointly and severally liable with the grantor for all unpaid assessments against the grantor of the unit 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.